HOME               REVIEW OF GHANA LAW 1980

JUDICIAL REVIEW OF LEGISLATION IN GHANA SINCE INDEPENDENCE [1980] VOL. XII RGL 67—103

Kumado C. E. K.

GENERAL INTRODUCTION

AT the outset, we may distinguish between two forms in which judicial review manifests itself: The first situation occurs in a constitutional scheme in which the courts have or exert the power to declare an enactment of the legislature unconstitutional. Usually its exercise is based on a written, rigid constitution changeable, if at all, only through a complex process. The second type is where a court resorts to strict interpretation of a piece of legislation. That is to say, the court, while professing to be interpreting the enactment, puts on the legislation an interpretation that frustrates the legislature's intention.1 We shall be concerned in this article with only the former situation.

Judicial review of legislation is predicated on the acceptance of the primacy and inviolability of certain legal principles. It involves the creation of a hierarchy of laws and the conferment, on the judicial branch, of the power to determine and to maintain the hierarchy. Thus the concept of judicial review stems from a belief in the rule of law; that is to say, a belief that government should be by laws, not of men. It is of course possible to believe in the rule of law and yet to deny courts the power to determine the constitutionality of the acts of other branches of government. In modern times, however, most nations which adopt a written constitution provide for judicial review. For, in essence, judicial review is an endeavour to judge positive law in the light of ultimate values.2

Judicial review of legislation as a technique for social ordering in a constitutional scheme of government has undoubtedly been given great prominence by the work of the Supreme Court of the United States of America in modern times. Yet the idea of subordinating the actions of various organs of state to "higher principles," though effectively institutionalised for the first time in the United States, did not originate from there. As Professor Capelletti has pointed out, judicial review in the United States was the result of "centuries of European thought and colonial experiences, which had made western man in general willing to admit the theoretical primacy of certain kinds of law . . . "3

To say that judicial review antedates the United States is not to minimise the importance of the American contribution to the development of the theory and practice of judicial review of legislations; for it was in the United States that judicial review, as we know it today, first took root effectively. The Constitution of the United States, or perhaps more accurately, Chief Justice Marshall's interpretation of it in the case of Marbury v. Madison,4 initiated the era of "constitutionalism" with the notion of the supremacy of the Constitution over ordinary laws.5

In Marbury v. Madison, Chief Justice Marshall discussed the issue of a limited government evidenced by a written constitution and the difference between rigid and flexible constitutions. It is evident, he said, that either the constitution prevails over legislative enactments contrary to it, or the legislature is able to change the constitution by ordinary legislation. Either the constitution is the fundamental law, superior and unchangeable by ordinary means, or it is placed on the same level as ordinary legislative enactments and, as a result, can be altered at will by the legislative body. If the former alternative is accepted, then one must conclude that a legislative enactment contrary to the constitution is not law; if, on the other hand, the second alternative is chosen, written constitutions are no more than worthless attempts to limit a power which by its very nature is illimitable. Marshall's decision can thus be considered as the high-water mark of judicial review. The power of the courts to exercise judicial review is postulated as flowing necessarily from their duty of applying the law. The supremacy clause of the U.S. Constitution6 on which Chief Justice Marshall based his historic decision has therefore been used as the source of the supremacy of the constitutional provisions over the acts of Congress and the Executive and also is the basis of the power and duty of the judiciary to override laws inconsistent with the constitution.7

A primary problem with judicial review is deciding which organ to vest with the power. Two solutions are to be found variously in use: namely, either to vest the power in the ordinary courts or to create a special constitutional court. In the American system, the regular courts perform the function while in some European countries, notably France and West Germany, a special constitutional tribunal has been set up outside the regular court system to decide on questions of constitutionality. We may also distinguish two types of the special constitutional tribunals in use. In some countries employing it, like West Germany, this special tribunal, though separated from the regular courts, is a judicial body; in others, exemplified by France, the special tribunal, both in its nature and composition, is a political rather than a judicial body.

Under the European systems the invalidation of an enactment has erga omnes effect while under the American system a decision on a constitutional question is relevant only for the parties to the dispute.8  However, the operation of stare decisis in the common law tradition ensures that in practice the difference in effect between the two systems disappears. When an enactment is declared unconstitutional in the United States, it ordinarily means that the act is void ab initio. Even though the enactment remains on the statute book it is considered "dead law." In some European systems, as for example, Austria, the unconstitutional law is considered voidable rather than void. The enactment is valid until the court expressly annuls it. The question of the prior validity of unconstitutional laws, remains in practice a very thorny one. The solution generally employed by the Italian, West German and American courts perhaps grapples with the problems best in criminal cases the laws are apt to be held invalid ex tune, whereas in civil cases their invalidity may not be retroactive.

A further problem connected with judicial review is whether the power is consistent with democracy.9 Judicial review, it is argued, is undemocratic because it involves a serious restriction on the electoral process which is central to the theory and practice of democracy. It puts in the hands of a non-elective and irremovable organ of government the tremendous power of frustrating the majority decision of the elected representatives of the people. The people, so the argument goes, must be left to manage and mismanage their affairs through their representatives who are answerable to them without the interference of an oligarchic team of "Platonic guardians" over whom the people have no control. Judicial review, so the argument continues, has the effect of blunting the people's vigilance in respect of their rights since the courts then become their conscience; this in itself contains the seed of destruction for democracy. Democratic battles are not won in the courts but in the legislatures and arenas of public opinion. The judiciary is accountable to no one but itself. The fact that now and again some of its judgments also have the effect of furthering the goals of democracy does not make it escape the censure that it is essentially undemocratic.

The protagonists of the consistency of judicial review counter by saying that democracy should not be confused with unchecked majoritarian rule, unlimited government or legislative sovereignty. Democracy does not require policy decisions to be made by bodies ever sensitive to electoral sentiment. History confirms that judicial review has popular support and therefore it is democratic. Democracy does not require that there should be a voting on all major policy issues; neither is it necessary in a democracy to elect all the officers who exercise crucial authority in the society. The protagonists further contend that judicial review is inherently adapted to preserving broad and flexible lines of constitutional growth and maintaining a pluralist equilibrium in society.

Suffice it to say as Levy rightly notes,10 the question whether judicial review is consistent with democracy does not appear to have a one-sided answer. For while we may admit that judicial review does appear a deviant growth on pure democratic theory, it seems perfectly arguable, as Bickle does, that judicial review can and does achieve "some measure of consonance . . . a tolerable accommodation with the theory and practice of democracy."11

Judicial review may thus be postulated as the result of an evolutionary pattern common to much of mankind. It is, in a sense, a combination of the "forms of legal justice and the substance of natural law. Desirous of protecting the permanent will, rather than the temporary whims of the people, many states have reasserted higher law principles through written constitutions."12 It is:

"a synthesis of three separate concepts, namely the supremacy of certain higher principles, the need to put even the higher law in written form and the employment of the judiciary as a tool for enforcing the constitution against ordinary legislation."13

JUDICIAL REVIEW IN GHANA

Judicial review in Ghana can be traced to the fact that before independence, as was the case with all British Colonial Territories, the Privy Council exercised that power in relation to the overseas empire.14  The underlying legal basis for this power of judicial review exercised by the Privy Council was to be found in the hierarchy of norms in the British Colonial Empire. In the legal system that existed in the colonies, English law was supreme. The colonial legislatures were subordinate to the English Parliament. Often, the Order-in-Council setting up these legislative bodies provided that they could pass laws only if they were reasonable and not contrary to the sovereign will of the English Parliament expressed in English enactments.

Colonial laws were thus in theory equated with regulations passed by local government bodies in England under some enabling law.  They could therefore not stand if they were inconsistent with the laws of England. Thus in Numo v. Kofi15 where a provision of the West African Court of Appeal Ordinance was found inconsistent with a rule of court which had been made under an Order-in-Council, the rule of court was held to prevail because the Order-in-Council had provided that the rules of court when made were to be incorporated into the Order-in-Council. At the time of independence therefore Ghana was not innocent of judicial review.

REVIEW UNDER THE INDEPENDENCE CONSTITUTION OF 1957

At the time of independence in 1957, there was a lot of political in-fighting between the Convention People's Party which had emerged victorious and the opposition parties, the most important of which was the United Party. The opposition forces fought strenuously for the Constitution to provide safeguards for minority interests. The safeguards included giving to the courts the power to review legislation to bring it into conformity with the Constitution.

At independence, Ghana adopted the institutional forms of British parliamentary system. The legislative power of the state was vested in Parliament.16 The Constitution, however, imposed three substantive limitations on the power of Parliament: (1) No law could "make persons of any racial community liable to disabilities to which persons of other such communities are not made liable."17 (2) Except for restrictions imposed for the preservation of public order, morality or health, no law could "deprive any person of his freedom of conscience or the right freely to profess, practise or propagate any religion."18 (3) The taking of private property was subject to a right of adequate compensation, to be judicially determined.19

The Constitution also placed certain procedural limitations on the exercise of legislative power, some involving the necessity for approval by regional organs. These applied to enactments altering regional boundaries and names of regions,20 affecting the status and functions of chiefs21 or modifying the constitutional provisions of Ghana.22  The various limitations both substantive and procedural, were buttressed by the power of judicial review granted to the Supreme Court.  Article 31 (5) which conferred this power read:

"(5) The Supreme Court shall have original jurisdiction in all proceedings in which the validity of any law is called in question and if any such question arises in any lower court, the proceedings in that court shall be stayed and the issue transferred to the Supreme Court for decision."

Article 31 (5) exhibits a distinction between judicial review in Ghana and United States which was to become a permanent feature of judicial review in Ghana. In the United States, questions of constitutionality are dealt with by both state and federal courts. Under the 1957 Constitution, however, questions of constitutionality were made the exclusive preserve of the Supreme Court. Where the issue arose in any lower court, the proceedings were to be stayed until the Supreme Court had dealt with the constitutional issue. It may well be that constitutional issues were considered to be too important to be adjudicated upon in every court. This aspect of judicial review would appear to group Ghana with West Germany in the practice of review with this important difference that the constitutional court of West Germany, though a judicial body, is outside the regular court system.

The first opportunity for the exercise of the power of judicial review by the Supreme Court under the 1957 Constitution occurred in the case of Lardan v. Attorney-General (No. 2).23 Lardan had been served with a deportation order. He brought an action challenging the order on the grounds that he was a Ghanaian and could not be  deported.24 He asked for an interim injunction to prevent the government from deporting him while he challenged the order in the courts. The injunction was granted but was later discharged because of insufficiency of evidence. Subsequent to these proceedings, the Ghana Parliament passed the Deportation (Othman Lardan and Amadu Baba) Act, 1957, deporting the persons mentioned in the Act. By section 4 (2) of this Act all proceedings instituted for the purpose of impugning the validity of the deportation orders already referred to, were determined. The present action was the result of those occurrences.

For Lardan, it was argued that the substantive actions pending before the passage of the Deportation (Lardan and Amadu Baba) Act, 1957, concerned primarily the establishment of citizenship and were therefore not affected by the Act. It was further contended that the Act itself was ultra vires and unconstitutional because it violated the 1957 Constitution as being discriminatory within the meaning of article 32 (2) of that Constitution and also was repugnant to the powers of making law for peace, order and good government as contained in article 31 (1) of the Constitution.

The learned judge rejected all the three contentions. He was satisfied that, notwithstanding the form of the original proceedings, substantially they were aimed at attacking the deportation orders made under the Deportation Act, 1957. As regards the contention that the Deportation (Lardan and Amadu Baba) Act, 1957, was discriminatory and therefore unconstitutional, the learned judge pointed out that what was prohibited by the Constitution was legislation that was racially discriminatory. He found nothing within the Deportation (Lardan and Amadu Baba) Act, 1957 to indicate that the persons it concerned were being discriminated against on racial grounds. Consequently, he found no merit in the argument that the Act was caught by article 32(2) of the Constitution. Finally, the learned judge held that article 31 (1) which empowered Parliament to make laws for peace, order and good government conferred plenary powers the due exercise of which could not be called in question except by Parliament itself. After a survey of the law in other Commonwealth countries with similar provisions in their constitutions, the learned judge concluded that the only investigation that the courts could validly embark upon was whether the Act was duly passed. If the result was in the affirmative, it was not open to the courts to decide whether the Act in fact could be considered as being conducive to peace, order and good government.

The effect of the ruling was, of course, that Lardan was left high and dry. He was left with no remedy; though it is arguable perhaps that he could still have brought an action for habeas corpus. It is surprising that the learned judge refused to go into the question of whether the law passed was for the peace, order and good government of Ghana. He seemed to have laboured under the impression that the only grounds on which an Act of Parliament could have been attacked under the 1957 Constitution were (1) procedural invalidity and (2) that it was ultra vires the powers of Parliament. He did not find his duty, once he was satisfied of the formal validity of an enactment, as requiring him to inquire into the content of the enactment except of course, to find out whether the enactment contained anything in violation of an express restriction.

With respect, article 31(5), as we have seen, empowered the Supreme Court to decide issues where "the validity" of an enactment was called into question. There appears nothing inherent in the meaning of the word " validity" which restricts its ambit to the areas suggested by the learned judge. It is submitted that article 31 (5) was sufficiently wide to enable the courts under the 1957 Constitution to decide whether or not an enactment which had been duly passed, could in fact be considered as being for the peace, order and good government of the country.

The second occasion for giving teeth to the constitutional power of judicial review under the 1957 Constitution arose in the case of Ware v. Ofori-Atta.25 In that case the plaintiff brought an application for a declaration that the Statute Law (Amendment) (No. 2) Act, 1957, and the Ejisu Stool Property Order, 1958, made thereunder were invalid. The plaintiff argued that the enactments concerned had been passed in contravention of article 35 of the 1957 Constitution which had provided a special procedure for the enactment of Bills affecting the traditional functions or privileges of a chief.26

It was argued principally on behalf of the defendants that the Act affected the traditional functions of a chief only incidentally. Doubt was also raised about whether the applicant was the occupant of a chiefly office. Finally, it was strongly urged on the court that the Act was valid because it was passed for "peace, order and good government" in accordance with article 31(1) of the Constitution.27

The court rejected the contentions of the defendants. It found that the Act was mainly and directly concerned with the custody of stool property and that it affected chieftaincy not only incidentally as had been argued on behalf of the defendants. The court also found that, whatever might have been the historical antecedents of the applicant, there was no doubt that he was holding a chiefly office at the time of the action. As regards the argument that the Act had been passed for "peace, order and good government " the court's view was that28:

"In Ghana there is only one Legislature, and all laws passed by it are presumed to be for peace, order and good government, in accordance with section 31 (1) of the Constitution. Obviously the fact that a law is so passed cannot alone exclude it from the ambit of section 35, since, if this were so, section 35 would not have applied to any law."

As far as the court was concerned therefore the only criterion was whether a Bill directly affected the traditional functions and privileges of a chief. If it did, then the procedure laid down in section 35 had to be followed, whatever other purpose the proposed legislation might have. Applying this standard to the case at hand, the court came to the conclusion that the plaintiff was entitled to his declaration. Accordingly, the court declared the Statute Law (Amendment) (No. 2) Act, 1957 and the Ejisu Stool Property Order invalid.

One final interesting observation that can be made about the 1957 Constitution is its silence on the judicial power of the State. Nowhere in the Constitution does one find a provision expressly vesting this power in the judiciary. Apart from article 31 (5) which gives the Supreme Court original and exclusive jurisdiction over questions of constitutionality, the whole document is surprisingly quiet about the repository of the judicial power of the State.

Be that as it may, it seems fair to state that even though the Independence Constitution provided for judicial review of legislation, its exercise was still at a rudimentary stage.

THE REPUBLICAN CONSTITUTION OF 1960

Ghana became a Republic in July 1960. The 1957 Independence Constitution was repealed and a new Constitution enacted in its place. The power of judicial review, however, was retained. The relevant constitutional provisions on judicial review were in articles 41(2) and 42(2).  Article 41 (2) vested the judicial power of the State in the judiciary and article 42 (2) gave the supreme Court original jurisdiction to determine questions of constitutionality. Article 55 (4) extended this power of judicial review to legislative instruments made by the first President under article 55.

The wording of article 42 (2) appears to have the effect of prohibiting the Supreme Court from making pronouncements on the constitutionality of enactments except where such a decision is necessary for the disposal of a concrete dispute.  For as has been pointed out by Rubin and Murray, the words "where the question arises," reasonably interpreted, must mean that the Supreme Court can give neither advisory nor speculative opinions.29 The same authors also suggest that the wording of article 42(2) limits the Supreme Court's power of judicial review to only the enactments passed by the Republican Parliament.30 They argue that the power is to be exercised where a question arises "whether an enactment was made in excess of the powers conferred on Parliament by or under the Constitution." So that, in their opinion, the Supreme Court's power of judicial review under the 1960 Constitution did not extend to enactments that were in existence before the coming into force of the Constitution. The problem of the scope of judicial review under the 1960 Constitution will be dealt with fully when we come to discuss the judicial attitude to its exercise. It need only be pointed out here that the wording of article 42(2) need not be given so restricted a meaning, particularly, since the Constitution was supreme to any other law.

It is interesting to note at this point that even though the article conferring the judicial power of the State on the judiciary was entrenched, the one granting review was not. Whether or not this would have affected the power of the courts to pronounce on questions of constitutionality was, however, never determined before the Constitution as a whole was suspended in 1966 after the military take-over. It would, of course, have been interesting to see whether the Supreme Court of Ghana would have adopted the Marbury v. Madison reasoning if the occasion had arisen.

Commenting on the exclusive jurisdiction enjoyed by the Supreme Court in matters of constitutionality, Bennion has suggested that31:

"Article 42 (2) was enacted so as to ensure that matters of vital constitutional importance were not pronounced upon by the lower courts, with the risk of dislocation of state business during the period between the promulgation of a lower court's decision that a particular enactment was ultra vires and the hearing of an appeal from that decision."

What was the scope of the power of judicial review provided in the 1960 Constitution? This question and many others were considered by the Supreme Court in the controversial case of Re Akoto.32 The appellants had appealed against the refusal of Sarkodee-Addo J. (as he then was) to grant them habeas corpus. The appeal was fought on many grounds. For the present discussion, however, the most relevant contention of the appellant's counsel, Dr. J. B. Danquah, was that33: The Preventive Detention Act, 1958, by virtue of which the appellants were detained was in excess of the powers conferred on Parliament by the Constitution of the Republic of Ghana with respect to article 13 (1) of the Constitution, or was contrary to the solemn declaration of fundamental principles made by the President on assumption of office.

The appellant's counsel also made some bone about the Preventive Detention Act (hereafter referred to as P.D.A.) being violative of the Constitution because it had been passed during peace time. This contention will not be discussed because it is the writer's humble opinion that neither the wording nor the spirit of the Constitution warranted such a ground for determining constitutionality. This contention would therefore appear to have been totally misconceived.

The resolution of the substantial issue of constitutionality raised by the appeal necessitated the determination, by the court, of the effect to be attributed to article 13 (1) in particular, and the scope of judicial review under the 1960 Constitution. Article 13 (1) provided:

"13. (1) Immediately after his assumption of office the President shall make the following solemn declaration before the People—

On accepting the call of the people to the high office of President of Ghana I . . . solemnly declare my adherence to the following fundamental principles-

That the powers of Government spring from the will of the people and should be exercised in accordance therewith.

That freedom and justice should be honoured and maintained.

That the union of Africa should be striven for by every lawful means and, when attained, should be faithfully preserved.

That the Independence of Ghana should not be surrendered or diminished on any grounds other than the furtherance of African unity.

That no person should suffer discrimination on grounds of sex, race, tribe, religion or political belief.  That Chieftaincy in Ghana should be guaranteed and preserved.

That every citizen of Ghana should receive his fair share of the produce yielded by the development of the country.

That subject to such restrictions as may be necessary for preserving public order, morality or health, no person should be deprived of freedom of religion or speech, of the right to move and assemble without hindrance or of the right of access to courts of law.

That no person should be deprived of his property save where the public interest so requires and the law so provides."

For the appellants, it was argued that it is of the essence of government under a written constitution that the various organs of state are limited in their powers by the constitutional document. The Parliament established by the 1960 Constitution was therefore not sovereign in the sense in which that word is employed to characterise the supremacy of the British Parliament. Parliament in the exercise of the legislative power granted it under the Constitution could not pass any laws that contravened the Constitution either expressly or impliedly. Therefore in the exercise of its legislative powers, Parliament was subject to the declaration of fundamental principles embodied in article 13(1), as much as it was limited by other provisions of the Constitution. The P.D.A., however, authorised the President,if he was satisfied, to order the detention of a person without trial. This, in the contention of counsel for the appellants, was an exercise of judicial power by the legislature. And yet article 41 (2) had vested the judicial power of the state in the courts. This purported exercise of judicial power was therefore invalid and the courts must so hold. Besides, so counsel for the appellants contended, the P.D.A. provided for discrimination against people for their political views; it limited freedom of speech, movement and association—all important freedoms which the President in his solemn declaration under article 13 (1) undertook to uphold. It was therefore urged on the court to rule the P.D.A. unconstitutional because the President could not have assented to an Act which was clearly in violation of his solemn constitutional undertaking.

The P.D.A. though enacted before the adoption of the 1960 Constitution had been expressly continued in force by the Constitution (Consequential Provisions) Act, 1960. Article 40 of the Constitution also included it in the laws of Ghana. The appellants contended that the Constitution (Consequential Provisions) Act, 1960, could not continue in existence a law that had been "silently destroyed by the enactment of the Constitution." Suprinsingly, it was not urged on the court that, in so far as the Constitution (Consequential Provisions) Act, 1960, purported to continue in force an enactment which was inconsistent with a provision of the Constitution, it was itself unconstitutional.

A number of arguments were also put up on behalf of the Republic. Mr. Geoffrey Bing, the Attorney-General, argued strenuously that the scope of judicial review under the 1960 Constitution was not the same as prevailed in other countries which also had written constitutions. This was because, in his contention, the Republican Parliament was sovereign. He argued that the only limitation on Parliament's power was to be found in article 20.34 Therefore examples of the practice of review elsewhere should not be followed in Ghana. Granted the supremacy of Parliament, article 13 (1) could not be said to limit it in any way. In the contention of the Attorney-General, article 13 (1) was nothing more than:

"a solemn statement of principles intended to prevent any person who cannot subscribe to them becoming President of Ghana . . . The object of the declaration is to impose on every President a moral obligation. Article 13 (1) provides . . . a political yardstick by which the conduct of the President can be measured by the electorate. If the President departs from any of the principles set out in the declaration, the people have a remedy, not through the use of the courts but through the use of the ballot box."35

It was a major contention of the Attorney-General therefore that outside the limitations imposed on Parliament by article 20, it was not limited in any other way by any other provision of the Constitution. The P.D.A., in his opinion, was not only valid in terms of the Constitution but was necessary for the maintenance of constitutionalism in a country, like Ghana, which was changing from a state of dependence to independence.

In a language that bore close resemblance to the submissions of the Attorney-General, the Supreme Court dismissed the appeal. The court found the contention that article 13 (1) limited the legislative power of Parliament in conflict with express provisions of article 20. The P.D.A., in its opinion, was not unconstitutional. The only limitation on the sovereignty of Parliament was to be found in article 20. The Supreme Court was satisfied that36:

". . . Article 13 (1) is in the form of a personal declaration by the President and is in no way part of the general law of Ghana. In the other parts of the Constitution where a duty is imposed the word 'shall' is used, but throughout the declaration the word used is `should.' In our view the declaration merely represents the goal which every President must pledge himself to achieve. It does not represent a legal requirement that can be enforced by the courts.

On examination of the said declarations. . .we are satisfied that the provisions of Article 13 (1) do not create legal obligations enforceable by a court of law. The declarations however impose on every President a moral obligation, and provide a political yardstick by which the conduct of the Head of State can be measured by the electorate. The people's remedy for any departure from the principles of the declaration, is through the use of the ballot box, and not through the courts."

The court thus rejected the broad scope argued for brilliantly by Dr. Danquah. Judicial review under the 1960 Constitution would therefore appear to have been limited by the Supreme Court to cases where a violation of article 20 of the Constitution could be proved. It is submitted that it was not necessary to so restrict the scope of judicial review in order to come to the specific conclusion it reached in Re Akoto. For it seems arguable that article 13 (1) did not give rise to any justiciable rights. Even if some of the provisions concern fundamental human rights, the only way these can be enforced is by a selective process of a sort. But the Constitution gave no guidance as to how this selective process was to work.

As was argued by the Attorney-General, some of the provisions of article 13 (1) would give rise to much difficulty if article 13 (1) were held to be justiciable. For example, how was the provision that every citizen be entitled to a fair share of the national produce to be enforced? It is submitted therefore that the actual holding that article 13 (1) did not give rise to legally enforceable rights is defensible though the reasoning of the court did not sufficiently analyse the constitutional issues raised.

Of course, the absence of any guidelines in the constitutional document as to how the rights contained in article 13 (1) were to be enforced is not conclusive as to whether they could have been enforced by a selective process. Any one familiar with the work of the U.S. Supreme Court particularly, in the area of the Bill of Rights in the U.S. Constitution, would probably argue that the absence of any guideline from the constitutional document did not per se preclude the court from fashioning out its own doctrinal basis for the enforcement of any of the declarations embodied in article 13 (1).

One observation worth commenting on is the court's argument that the word "should" was used in the declaration where, if it were intended to be legally enforceable, one would have expected the word "shall." This argument is surprising in view of the provisions of sections 27 and 28 of the Interpretation Act, 1960 (C.A. 4), which was in force at the time of the decision in Re Akoto.37 Assuming that the Interpretation Act is not considered unconstitutional, since it appears to be exercising the judicial power of the state by providing presumably mandatory interpretation of various words, the two sections seem to make the distinction between the effect of "shall" and "should" no longer necessary in Ghana. This argument was, of course, not put to the court. Neither did the court advert its attention to it. Given the narrow scope which the court was prepared to give judicial review, it is not inconceivable that such an argument, if it had been made to the court, would have been rejected.

One peculiarity about the language in which the constitutional grant of the power of judicial review in the 1960 Constitution was couched may be pointed out. Article 42 (2) talks of "whether an enactment was made in excess of the powers conferred on Parliament by or under the Constitution . . ." (The writer's emphasis.) This would appear to suggest that judicial review under the 1960 Constitution was limited to the application of the ultra vires doctrine. Did the Supreme Court have jurisdiction to determine the issue of conflict between a constitutional provision and an Act of Parliament where Parliament was acting within its authority? Article 42 (2) may be contrasted with article 31(5) of the 1957 Constitution. Article 31(5) grants the power of judicial review to the Supreme Court "in all proceedings in which the validity of any law is called in question. . ." If one is to give any significance to the difference in the language employed in the two provisions, it seems that the conclusion is that the 1957 Constitution contained a broader grant of review power than the 1960 Constitution. In terms of judicial attitude to the power of review, our discussion of the few cases concerned so far shows clearly that under the 1957 Constitution judicial review was given a broad view though it was short-lived.38 Under the 1960 Constitution the courts themselves narrowed severely the scope of their power of judicial review. The decision in Re Akoto assigned a kind of mechanistic role to the courts in their exercise of power of judicial review.

THE 1969 SECOND REPUBLICAN CONSTITUTION OF GHANA

The last constitutional document to be considered in this discussion is the 1969 Constitution which ushered in the return to civil rule in Ghana after a three-year spell of military rule (24 February 1966 - August 1969). If that document as a whole can be considered as a reaction against the 1960 Constitution, it is submitted that the provisions regarding judicial review evince an even greater degree of over-reaction against the Supreme Court's decision in Re Akoto.

After a survey of the various attempts at planting judicial review in Ghana, the Constitutional Commission which drafted the 1969 Constitution could not help concluding that the picture it discovered was blurred and dismal. The commission therefore proposed39:

"that the Judiciary should keep watch and ward over the Constitution. As the guardian of the Constitution the Supreme Court, the highest court in Ghana, will have the power to adjudicate on the constitutionality or legality of all laws passed in Parliament."

It was not surprising therefore that the 1969 Constitution contained the most impressive and elaborate provisions for the exercise of judicial review that have been included in any of the Ghanaian Constitutions. The over-reaction against the Akoto decision was understandable. The constitution-makers gave the judiciary broad review powers under the 1969 Constitution as part of the weapons designed to prevent the emergence of a one-party state in Ghana.

The Decree which set up the Constitutional Commission40 had emphasised that the commission's proposals should incorporate the doctrine of " separation of powers." It was to include provisions for a " separate and independent " judicial organ and to ensure " that the said Constitution provides an effective machinery for the protection " of individual freedoms. The commission remained alive to these injunctions. This can be seen, for example, in paragraph 73 of its report, which reads41:

" The legal instrument should include clear legal processes for enforcing rights. . .; clear provisions for maintaining the independence of the Judiciary; clear authority for the Courts to interpret the provisions of the Constitution according to principles of interpretation laid down by the Constitution with the correlative power to nullify Acts of Parliament and acts of the Executive."

That theme ran throughout the whole of the final constitutional document.

The relevant provisions in the 1969 Constitution with respect to judicial review are: articles 1 (2), 102 (1) and (3), 106 and 126 (5). Generally speaking, these articles established the supremacy of the Constitution over all other law, vested the judicial power of the state in an independent judiciary and provided for the vindication of alleged infractions of constitutional provisions. Finally, the Supreme Court was clothed with the power to deal with issues of constitutionality.

In addition to the specific provisions referred to in the immediately preceding paragraph, there were some provisions that embodied principles relevant to the determination of questions of constitutionality. The preamble Of the Constitution embodied the philosophical underpinnings of the Constitution. The principles therein contained what may be considered as the " spirit of the Constitution."42 Chapter four of the Constitution which embodied the fundamental human rights provisions expressly made those rights justiciable, enforceable at the suit of an aggrieved party, under article 28, by the High Court. Article 169 provided an amendment mechanism that left one in no doubt that the Constitution was something more than an ordinary enactment. This amendment mechanism also constituted serious limitations on the legislative power of Parliament.

It provided a tripartite division of the provisions of the Constitution: There were the entrenched provisions which could not be amended at all by Parliament. Included in this class are articles 169(3) (4), chapter one which contained the supremacy clause and provisions for the enforcement and defence of the Constitution; article 127 prohibiting taxation otherwise than under the authority of an Act of Parliament; article 149 prohibiting the establishment of an armed force except under the authority of an Act of Parliament; and article 153 guaranteeing the institution of chieftaincy. Then there was a second set of provisions which could only be amended by being enlarged. These included chapter four which dealt with the liberty of the individual (the human rights provisions); chapter five which dealt with representation of the people, notable provisions of which may be mentioned article 29 establishing the right of every citizen of sound mind and 21 years of age to be registered as a voter, article 33 prohibiting the formation of political parties on sectional basis. Finally came the provisions which could be amended but by a procedure so tortuous as to ensure that only amendments which were absolutely necessary would be embarked upon. Significant in this procedure, apart from the requirement of Gazette publication for the proposal and the bill for the amendment, was the requirement that the amendment be passed by two Parliaments. That is to say the Constitution envisaged a mandatory dissolution of the first Parliament to pass the amendment and then the amendment had to be approved by the succeeding National Assembly for it to become effective.

Like previous constitutions, the Supreme Court which was the highest court of the land, was given exclusive jurisdiction to determine questions of constitutionality under the 1969 Constitution. That however, seems to have been the only resemblance that the regime of review under the 1969 Constitution had with the earlier Ghanaian Constitutions.

A few observations are worth making on the provisions for judicial review under the 1969 Constitution. Article 102 (1) which ends in the words " . . . no organ or agency of the executive shall be given any final judicial power " presents a perplexing query. Did it imply that "final judicial power " could have been validly vested in an organ or agency of Parliament? Fortunately for the courts (but perhaps unfortunately for the constitutional lawyer) the occasion for the resolution of this difficult problem never arose before the Constitution was suspended by the 1972 coup d'etat.

The protection of human rights was entrusted in the hands of the High Court with a right of appeal to the Court of Appeal and then to the Supreme Court under article 28. This would suggest that as far as the enforcement of the human rights provisions was concerned the High Court had power to declare unconstitutional any Act that violated the provisions of articles 12-27 inclusive. This interpretation is further strengthened by the wording of article 106 (1) which gave the Supreme Court exclusive and original jurisdiction in all matters of constitutionality "save as otherwise provided in article 28 of this Constitution." (The writer's emphasis.) It is submitted that the only reasonable interpretation that takes account of the wording of articles 28 and 106 (1) is that the High Court also had powers, albeit limited to articles 12-27, to annul enactments.

The interpretation and enforcement of the Constitution, as the wording of article 106 suggests, can only be embarked upon in a concrete case. This means, of course, that the Supreme Court could not, suo motu exercise this function. The wording of article 2 also leaves one in no doubt that the declaratory relief could only be sought in a concrete case. The Constitutional Commission had recommended that the Supreme Court be given authority to render advisory opinions on the constitutionality of statutes prior to final enactment. But this was rejected by the Constituent Assembly which promulgated the Constitution.

The impact of these provisions was too plain to be lost on any one. The power of the judiciary to adjudicate on questions of constitutionality was left in no doubt. Parties involved in lawsuits were offered the opportunity to raise constitutional issues and the remedies were made clear. With such detailed and explicit constitutional provisions, problems were bound to arise. In the face of such clear referral procedure, the Supreme Court could hardly avoid confronting questions of constitutionality. It was thus forced to grapple with such problems long before it had developed any avoidance techniques along the lines of the U.S., West German and Italian courts.

Not unexpectedly, counsel felt free to raise issues of constitutional validity. The Supreme Court was suddenly being flooded with claims by counsel in various suits that some constitutional provisions had to be interpreted. In Republic v. Maikankan43 the Supreme Court had occasion to lay down broad guidelines for the referral of constitutional issues to that court. In interpreting article 106, the court there stated:

"We wish to comment that a lower court is not bound to refer to the Supreme Court every submission alleging as an issue the determination of a question of interpretation of the Constitution or of any other matter contained in article 106 (1) (a) or (b). If in the opinion of the lower court the answer to a submission is clear and unambiguous on the face of the provisions of the Constitution or laws of Ghana, no reference need be made since no question of interpretation arises and a person who disagrees with or is aggrieved by the ruling of the lower court has his remedy by the normal way of appeal, if he so chooses. To interpret the provisions of article 106(2) of the Constitution in any other way may entail and encourage references to the Supreme Court of frivolous submissions, some of which may be intended to stultify proceedings or the due process of law and may lead to delays such as may in fact amount to denial of justice."

These dicta thus had three interrelated main aims: to prevent the reference of frivolous submissions, to guard against the stultifying of proceedings and to ensure that delays based on wholly unmeritorious submissions are avoided.

With respect, the guidelines are hardly clear. It would suggest that where a question of interpretation arises in proceedings before a lower court, that court had just to decide whether there was some ambiguity in the particular constitutional provision. It was to refer the matter to the Supreme Court only if it felt that there was some ambiguity. This construction flies in the face of the wording of articles 2 and 106. The Supreme Court's suggestion that a party aggrieved by a holding of a lower court could, if he chose, appeal hardly solves the issue. In the first case, it is trite law that appeal does not lie as of right in any matter. Secondly, if a party which disagrees with the lower court's ruling on the matter can appeal on that issue, the aim of the guidelines would be defeated. For all that he had to do would be to appeal against the decision of the lower court.44

Admittedly, the Supreme Court was trying to grapple with difficult and unavoidable situation in view of the wording of article 106(2). The Constitution had by its detailed and explicit provisions regarding judicial review appeared to have declared a free for all on the raising of questions of constitutionality.  As already pointed out, this situation gave our Supreme Court obviously very little room to manoeuvre to avoid confronting constitutional issues along the lines developed elsewhere.  Added to the wording was also the fact that the makers of the Constitution, as a perusal of the Constitutional Commission's proposals clearly shows, designed the document to avoid situations of the kind represented by the Akoto opinion.  It appeared that the intention was to give the courts no room to repeat that opinion.  In spite of this apparent declared policy of the framers of the 1969 Constitution, it has to be admitted that for practical purposes some rules of avoidance had to be developed by the courts.  What is regretted here is that the Supreme Court's prescribed panacea offered no real solution to the rather complex problems.45

Awoonor-Williams v. Gbedemah46 illustrates the criticism stated above. In that case the Court of Appeal sitting as the Supreme Court47 stated the circumstances in which the original and exclusive jurisdiction of the Supreme Court under article 106 could be invoked. The court stated.

"It seems to us that for a plaintiff to be able to invoke the original and exclusive jurisdiction of the Supreme Court his writ of summons or statement of claim or both must prima facie raise an issue relating to:

(1) the enforcement of a provision of the Constitution; or

(2) the interpretation of a provision of the Constitution; or

(3) a question whether an enactment was made ultra vires Parliament, or any other authority or person by law or under the Constitution."

The court went on to say that the question of interpretation did not arise where the constitutional provision was plain and unambiguous. It thus rejected the contention that the plaintiff's case disclosed that a question of interpretation was in issue.

That this conclusion was premature, however, was determined by the subsequent course of the proceedings. After declaring that the plaintiff 's case involved no question of construction, the court ordered the Attorney-General to be joined since it had come to the conclusion that the plaintiff's case disclosed a possible violation of the Constitution. In other words, the court was satisfied that there was an issue of constitutional enforcement in the petition of the plaintiff. The court however, could not reach a unanimous decision on the issue of interpretation. The constitutional provision which had appeared prima facie plain and unambiguous to the court earlier now became the stumbling block.48

The question that had to be resolved was the meaning to be attached to the words "adjudged or otherwise declared" in article 71(2) (b) (ii). The article read:

" 71.(2) No person shall be qualified to be a member of the Assembly who . . .

(b) has been adjudged or otherwise declared

(i) a bankrupt under any law in force in Ghana and has not been discharged; or

(ii) by the report of a Commission of Inquiry to be incompetent to hold public office or that while being a public officer he acquired assets unlawfully, or defrauded the State, or misused or abused his office or wilfully acted in a manner prejudicial to the interests of the State . . ."

It was the case of the plaintiff that a commission of inquiry had found that Mr. Gbedemah, who had been elected member of parliament for the Keta Constituency, had unlawfully acquired assets while being a public officer. Therefore the plaintiff urged the court to enforce article 71(2)(b)(ii) by disqualifying Mr. Gbedemah from sitting in the National Assembly.

Mr. Gbedemah did not deny that he had been so found by a commission of inquiry. But he argued that the words "adjudged or otherwise declared " were used in the Constitution in a legal sense. The commission's findings could not therefore be brought under their ambit. Since the adjudication or declaration was not that of a court of competent jurisdiction he could not be disqualified. In particular he relied on article 102 which vested judicial power in the judiciary and contended that the acceptance of the arguments of the plaintiff would mean that a commission of inquiry, which is an organ of the executive, could exercise final "judicial power."

The majority of the Court of Appeal rejected Mr. Gbedemah's contentions. In a judgment read by Apaloo J.A. (as he then was) it was clear that the majority considered the question of interpretation (which the court had in an earlier unanimous judgment declared as non-existent in the case) as one raising a choice between a technical meaning and a popular, literal meaning of the words "adjudged or otherwise declared." The majority opinion relied on statutory rules of construction and Maxwell on Interpretation of Statutes. In contrast the powerful dissenting judgment of Azu Crabe J.A. (as he then was) did not only rely on these sources but also showed an awareness and deep appreciation of the competing constitutional interests thrown up by the claims of the respective litigants.

Tait v. Ghana Airways Corporation49 further illustrates the fear that the courts did not appreciate the full enormity and complexity of the constitutional problems they were called upon to adjudicate on under the 1969 Constitution. The plaintiff here complained that he had been dismissed in violation of article 138 (b) which prohibited dismissal of public servants "without just cause." The court had no difficulty in rejecting his contention. As far as the Court of Appeal (sitting as the Supreme Court) was concerned, the plaintiff's claim was only for a common law action for wrongful dismissal. The court therefore held that it had no jurisdiction to entertain the action at first instance. This had also been the contention of the respondents. Replying to the contention of plaintiff that the case raised an issue of constitutionality the court stated50:

"We have already held that on its true construction and having regard to the issues settled, the plaintiff's action is essentially one for wrongful dismissal and does not, therefore, fall within the ambit of article 106 (1) (a). Admittedly, it raises one or two incidental constitutional issues; but that fact, without more, does, not turn the action into one for interpretation or enforcement or both within the meaning and intendment of article 106 (1) (a). It is an action for wrongful dismissal under the common law, which is part of the laws of Ghana . . ."

And this time the court was unanimous!

In Captan v. Minister for Home Affairs,51 the Court of Appeal (sitting as the Supreme Court) put a further restriction on a constitutional provision which clearly could have been used as another weapon for judicial review. It had been argued by the plaintiff that article 24(1) of the Constitution which dealt with freedom of movement gave him, an alien, the right of immunity from expulsion from Ghana. It was further contended that the minister's revocation of his residence permit was unconstitutional because the minister had given no reasons. The failure to give reasons, according to the plaintiff violated article 173 which had laid down guidelines for the exercise of discretionary power.

The court rejected the argument that article 24 inured to the benefit of the plaintiff, a non-citizen. The court reasoned that by virtue of the Aliens Act, 1963 (Act 160), the minister was entitled to revoke an alien's residence permit any time and this power had not, in the opinion of the court, been disturbed by the Constitution. Turning to the contention that the revocation violated article 173 because the minister gave no reasons, the court held that the minister in exercising his power under the Aliens Act was not exercising the sort of discretion contemplated by article 173. The court then made the following pronouncement which was largely gratuitous52:

"There is a very loose sense in which it can be said that most decisions taken by ministers in the day-to-day performance of their ministerial duties involve the exercise of some discretion . . . But can it be seriously argued that the exercise of discretion in this sense by ministers must comply with the requirements of article 173 . . . ? The government could hardly govern if this were so. In so far as the Memorandum contained in the Proposals for a Constitution for Ghana is any guide at all, the three paragraphs, namely, 731, 732 and 733 . . . and 515 . . . show clearly that the sort of discretionary powers contemplated by article 173 are those that arise when the legislature or the executive constitutes an administrative agency or some other authority with power to adjudicate quasi-judicially on administrative matters or with power of legislation delegated to it."

The court's arguments about the scope of article 173 can hardly stand analysis. The paragraphs of the memorandum the court relied on would appear to support more an expansive construction of article 173 than the restrictive one the court gave to it. Indeed paragraph 733 after stating the substance of article 173 (c) states53:

"This in our view will make it possible for the Courts to determine not only the limits of the exercise of the discretionary power, but also the reasonableness of it and whether the power so vested has been used in good faith."

By the court's restrictive interpretation, however, another round was lost in the battle for an expansive view of the power of judicial review under the 1969 Constitution.54

Another case which one may wish to discuss in this context is Sallah v. Attorney-General,55 particularly since this case raised more furore than any other constitutional law decision in Ghana since independence. Mr. E. K. Sallah who was a Manager of the Ghana National Trading Corporation (a state establishment) was dismissed from his post. His letter of dismissal stated that he had been dismissed in accordance with section 9 (1) of the First Schedule to the 1969 Constitution. Mr. Sallah brought this action for:

"a declaration that on a true and proper interpretation of the provisions of section 9 (1) of the First Schedule to the Constitution (Part IV) the Government of Ghana was not entitled to terminate [his] the plaintiff's appointment as a manager in the Ghana National Trading Corporation."

The question to be determined was whether the plaintiff, Mr. Sallah, held an office "established" by or under the authority of the National Liberation Council or in pursuance of a Decree of the National Liberation Council. The plaintiff contended vigorously that the office he held fell in none of the categories contemplated by section 9 (1) of the transitional provisions. The State's argument was based entirely on Kelsen's Pure Theory of Law. It was argued that the coup d'etat of 24 February 1966 had destroyed the legal order in existence before then and with it the existing law. A new legal order was established from which all law derive their validity. Consequently, the plaintiff was caught squarely by section 9 (1) of the transitional provisions.

The court rejected the Kelsenite argument. As far as it was concerned the question was the meaning to be given to the word "established." Did it mean create or continue in existence? The court was satisfied that the word had been used in the Constitution to mean create, in the sense of bringing into being. It found that the office held by Mr. Sallah had been in existence before the coup d'etat of 1966. The majority therefore held that Mr. Sallah was not holding such an office as was contemplated by section 9(1).56 Apaloo J.A. who read one of the majority opinions said57:

"To permit a thing to continue is to acknowledge its prior existence and it is an abuse of language to say that the person who permitted its continuance in fact created it."

The point of interest about the Sallah decision was that with the exception of Anin J.A., the rest of the judges refused to be drawn into considering broad jurisprudential issues. They did not see their duty to interpret section 9 (1) of the transitional provisions as leading anywhere into the realm of broad constitutional and other legal considerations.

However, in Benneh v. The Republic58 the full bench of the Court of Appeal showed a greater interest in the broader issues of constitutional litigation. The plaintiff-appellant in this case was found to have acquired assets unlawfully while in public office by a commission of inquiry. In September 1969, the National Liberation Council promulgated the Investigation and Forfeiture of Assets (Further Implementation Of Commissions' Findings) (No. 3) Decree, 1969 (N.L.C.D. 400), to get in for the State all the plaintiff's assets declared to have been unlawfully acquired. Pursuant to N.L.C.D. 400, the State initiated attachment proceedings, in the High Court against the plaintiff. The Plaintiff brought an action in the High Court to stop the State from proceeding against him. He complained that no judgment had been recovered against him by the State and prayed the High Court to restrain the latter from proceeding with its attachment process.

The State, while conceding that no action had been recovered against the plaintiff, contended that its action was based on N.L.C.D. 400 and therefore lawful. The plaintiff countered by saying that N.L.C.D. 400 violated articles 12 and 18 of the Constitution which debarred the State from depriving him of his property without compensation. He therefore invited the High Court to strike down N.L.C.D. 400 as unconstitutional.

The learned High Court judge declined the invitation. His view was that the action could only be properly entertained by the Supreme Court. The plaintiff appealed to the Court of Appeal. The ordinary bench of that court heard the appeal. It concluded that the High Court had jurisdiction to entertain the suit but it declined to remit the suit to the High Court. It based itself on section 13 of the State Proceedings Act, 1961 (Act 51), and argued that the injunctive relief which the plaintiff-appellant sought could not be validly granted against the State. The ordinary bench thought it would stultify itself if it remitted the case to the High Court to determine a relief which Act 51 peremptorily debarred it from granting.

The plaintiff further appealed to the Supreme Court. That appeal was heard by the full bench of the Court of Appeal which had succeeded to that jurisdiction of the Supreme Court after the latter had been abolished. The question which the full bench had to determine was the validity of N.L.C.D. 400. The majority of the Court (Azu Crabbe C.J. dissenting) held, per Apaloo J.A., that N.L.C.D. 400 did not offend against articles 12 and 18 of the Constitution. In the opinion of the majority, N.L.C.D. 400 was promulgated to implement the findings of commissions and to provide a convenient machinery for getting in assets and money found to have been unlawfully acquired. It was not the enactment that divested plaintiff-appellant of his property. Our immediate concern, however, is not with the actual decision but with the reasoning by which it was arrived at.

Significantly and in line with the approach to constitutional litigation which we have noticed in the earlier cases, the full bench in this case considered the litigation as raising purely a problem of statutory interpretation. The majority opinion described the court's constitutional role as being "interpretory. " But it is at least heartening to notice that the court, in this case, in spite of the limited view it took of its role, showed some awareness of other competing constitutional and social policy interests involved and the role of these interests in constitutional litigation. The majority opinion made it unmistakably clear that where the legislature takes steps to establish probity in public life, and the Constitution also contains provisions designed to achieve the same end, the function of the judiciary must be to lend a helping hand by putting liberal construction on the enactment to achieve this end.59

The plaintiff-appellant had also argued that the main features of N.L.C.D. 400 usurped "judicial power" vested by the Constitution in the judiciary, and therefore the Decree should be nullified. That argument did not impress the majority. They found nothing "judicial" in the declared aim and effect of the legislation. As far as the majority of the court were concerned, the unlawfully acquired assets had become vested in the State before the promulgation of N.L.C.D. 400. N.L.C.D. 400 was merely designed to bring in what had already been effectively vested in the State.

It would be recalled that in the discussion at the earlier part of this section, it was suggested that the High Court had power of a limited nature under article 28 of the Constitution to review enactments found to be inconsistent with articles 12-27 inclusive. The opinion of the majority lends some support for this view-point. The majority, however, seemed to have been of the view that questions of interpretation would have had to be referred to the Supreme Court even where the High Court was acting under article 28. With respect, it is difficult to see why this should be so. Article 28 is, in the opinion of the writer, in terms wide enough to clothe the High Court with jurisdiction to interpret the Constitution. It is therefore submitted that where the High Court was adjudicating in a case in which a party claimed that articles 12-27 were being violated in relation to him, the High Court had power under article 28 to interpret and nullify legislation if that was necessary for the resolution of the litigation.

The Benneh case, however, further confirms the impression gathered from the writer's reading of the earlier cases decided under the 1969 Constitution, namely, that our judges considered their role, when called upon to exercise their power of judicial review, as merely involving delving into the intricacies of statutory interpretation. In the Benneh case, however, there was a welcome change in the beat of the song. The court appeared prepared to give some role to other broad policy considerations.

THE HIGH COURT AND REVIEW UNDER THE 1969 CONSTITUTION

We may now consider what may be characterised as a peculiar practice of some of the High Court judges under the 1969 Constitution. It would be recalled that the constitutional provisions on judicial review, in particular, article 106(2) required lower courts to "stay the proceedings and refer the question of law involved to the Supreme Court for determination" where a question of constitutionality arose before the lower court. In a number of cases, however, in the face of the clear and mandatory provisions, the High Court refused to refer the issues to the Supreme Court and proceeded to nullify provisions in certain enactments on the grounds that such provisions violated the Constitution. A few examples will express our concern in this respect.

The first of such cases was the Republic v. Boateng; Ex parte Adu-Gyamfi II.60 In that case preliminary objection was taken to the jurisdiction of the High Court. The argument was that section 52 of the Courts Act, 1971 (Act 372),61 had ousted the jurisdiction of the High Court in chieftaincy matters. It was further argued that this view was fortified by articles 154 and 155 of the Constitution. The cumulative effect of these provisions, so it was contended, was to divest the High Court of jurisdiction in chieftaincy matters. After due consideration of articles 102, 113 and 114 of the Constitution, the learned judge held that section 52 of Act 372 could not oust the jurisdiction of the High Court or the Court of Appeal. The learned judge therefore held the purported ouster inoperative.

It was also argued that as a question of interpretation or enforcement of the Constitution had been raised in the proceedings, the High Court must refer the issue to the Supreme Court in accordance with article 106(2). The learned judge drew a distinction between "enforcing" and "applying" the Constitution. In the former case, the learned judge agreed that the proper forum was the Supreme Court but not in the latter case. The learned judge found support for his refusal to refer the issue to the Supreme Court in the dicta in the Maikankan case to which we have already alluded. What was clear here, however, was that the learned judge expressly nullified a provision in an enactment as being inconsistent with a constitutional provision. This was an exercise of a power which the Constitution declared was the exclusive preserve of the Supreme Court.62

A more blatant violation of constitutional injunctions by the High Court however, was to be found in the case of Shalabi v. The Attorney-General.63 The plaintiffs in that case sought a declaration that they were Ghanaian citizens and therefore they were entitled to operate a transport business notwithstanding the provisions of the Ghanaian Business (Promotion) Act, 1970 (Act 334). In arriving at his decision that the plaintiffs were Ghanaian citizens, the learned High Court judge made the following categorical pronouncements:64

"Section 1 of the Ghana Nationality Act, 1971 (Act 361), in so far as it purports to affect to their detriment the position of persons who were Ghanaian citizens before the coming into force of the Constitution is ineffectual. The new definition of citizen in the new Act is void and of no effect, in so far as it seeks to restrict citizenship within narrower limits than those prescribed in the Constitution."

A clear case of a court exercising jurisdiction it has not can hardly be made out!  Here admittedly the High Court was faced with a right which appeared to have been vested. It is regrettable that the learned judge thought that the best way to protect a vested right was to assume a jurisdiction he clearly was not clothed with. This and other confusing pronouncements characterised the attitudes of some of the High Court judges to judicial review under the 1969 Constitution.65

Clear and detailed though the constitutional provisions were on the power and scope of judicial review under the 1969 Constitution, the practice in the Ghanaian courts hardly gave one something to look to. After a careful study of all the cases which the courts considered as raising constitutional issues, one finds hardly a single case in which the reasoning did not suggest that dictionary meanings and canons of statutory interpretation were enough to resolve apparently difficult constitutional issues. The courts never showed that they felt called upon to choose between competing principles of constitutional law. We are given no insight as to how the process of choosing even between competing dictionary meanings of a word works. Our Supreme Court, in its exercise of judicial review under the 1969 Constitution, never reached the dizzy heights of constitutional statesmanship that the U.S. Supreme Court has displayed in its exercise of judicial review on decidedly less firmer grounds than our court had. The performance of the U.S. Supreme Court under the "equal protection clause," the "due process" clause and the way Marshall turned the "supremacy clause" into the bastion of judicial review in the United States have won the respect of all knowledgeable constitutional lawyers the world over. Our Supreme Court, however, allowed the appearance of the word "interpretation" in article 106 to blindfold it into narrowing the scope of perhaps one of the most commendable attempts so far made in the world to enshrine the power of judicial review in a written constitutional document.

Clearly then the courts had not grasped the enormity and complexity of the powers granted the judiciary under the 1969 Constitution. In a sense, the narrow view the Supreme Court took of its review powers was understandable. The positivist judicial attitude to constitutional adjudication, the "strict statutory construction" approach to the constitutional instrument, the search for legislative "intent" in the words of the Constitution and the impression created that the words themselves have a plain and absolute meaning that can be found with the aid of a dictionary—all these tendencies have become characteristic of judges in the Commonwealth.  By their common law training they equate adjudication in the constitutional law field with those of the normal private law courts deciding private litigation between private parties.66

JUDICIAL REVIEW UNDER THE MILITARY REGIMES OF GHANA

The last aspect of post-independence judicial review of legislation to be considered in our discussion is a review of legislation under our military governments. Twice in our constitutional experience, we have had a situation where the Armed Forces seized the reins of government, dismissed the executive and suspended the Constitution.67  One characteristic of the two military regimes we have had in Ghana has been that the Constitution was not abrogated but "suspended." The military authorities then enacted a Proclamation in which they generally sought to keep the powers of the judiciary under the "suspended" Constitution intact subject to the Proclamation and such other enactments as the military government decreed from time to time.

A convenient starting-point would be a dictum of Edusei J. (as he then was) in Republic v. State Fishing Corporation Commission of Enquiry (Chairman); Ex parte Bannerman where the learned High Court judge made the following definitive statement68:

"I wish to make it abundantly clear that the National Liberation Council may occupy a dual capacity in that it had powers to enact Decrees which have the force of an Act of Parliament and it also occupies an executive position such as the deposed President occupied . . .

I have taken pains to bring out clearly the dual capacity of the National Liberation Council because if the Council exercises its legislative functions by promulgating Decrees, I am of the view that the ultra vires doctrine cannot be used to question the validity of a Decree . . ."

The learned judge thus posited the view that the Decrees of the National Liberation Council (the first Ghanaian Military Government) could not be constitutionally questioned in the sense in which an enactment of Parliament under a written constitution would be subject to review. He would ascribe to the National Liberation Council sovereign legislative powers.69

Edusei J's words quoted above, may, however, be contrasted with the judgments of two other High Court judges. The first was Republic v. Director of Prisons; Ex Parte Salifa70 decided by Anterkyi J.  The question which had to be decided was whether a document which did not comply with the requirements of paragraphs 3(6),(7),(9),(10) and (11) of the Proclamation for the Constitution of the National Liberation Council, 1966, as amended by paragraph 16(a) of the National Liberation Council (Consequential and Transitory Provisions) Decree, 1966(N.L.C.D. 73), was a Decree.  It was contended on behalf of Salifa, who had brought an application for habeas corpus, that the document produced before the court could not be a valid Decree because it bore no number and had not been published in the gazette.  The court was therefore invited to declare his detention unlawful, as not having been authorised by any valid enactment.

In granting the application for habeas corpus the learned judge made a number of observations which must be of considerable interest to the constitutional lawyer.  He ruled that a document in violation of the provisions of the Proclamation could not be a valid Decree.  A document that was not promulgated or published (in the sense of being made public in the gazette)  could not be a valid Decree.  The learned state attorney had argued that paragraph 3(5) of the Proclamation, 1966, gave the National Liberation Council an unlimited power.71  Relying on the Preamble to the Proclamation, however, the learned judge concluded that the National Liberation Council had come into power to eradicate "illimitability of power in Ghana."  It could not therefore assume a power it was and must be deemed committed to eradicate.

That, however, was not to be the end of Salifa's troubles.  He was re-arrested immediately after leaving court pursuant to Anterkyi J.'s ruling. His second application for habeas corpus came before Charles Crabbe J. (as he then was).

The case was entitled this time as the Republic v. Director of Special Branch; Ex parte Salifa.72  The question was again the lawfulness of Salifa's detention under a document purporting to be a Decree which had not complied with the provisions on the procedural requirements of the Proclamation, 1966.  Apart from a change of personalities on the respondent's side, the argument, addressed to Charles Crabbe J. were the same as those that had been considered by Anterkyi J.  The legality of the purported Decree was again in issue. Charles Crabbe J. came to the contrary conclusion that the document in question was valid as a Decree. He concluded from his reading of the relevant provisions that a Decree could become operative and acted upon before its publication.

The conclusions reached by the two judges on the same facts and materials present special problems. But it is important to note that running through both opinions were sentiments to the effect that under certain circumstances Decrees of the National Liberation Council, passed in the exercise of its supposedly unlimited legislative powers, could be subject to review, even if only on grounds of formal validity. We are therefore emboldened into postulating the broad constitutional proposition that even under military regimes, judicial review of legislation is possible. The dictum in Ex parte Bannerman cannot be considered to have had the last say on the point.

To bring down the curtain on our discussion, we may now look at Republic v. Military Tribunal; Ex parte Ofosu-Amaah.73 This has been the most important decision on review of legislation since the National Redemption Council came into power in January 1972. The applicants, together with others, had been convicted by a military tribunal of the offences of subversion under the Subversion Decree, 1972 (N.R.C.D. 90). They had also been convicted of conspiracy to commit subversion. They sought an order of certiorari to quash the conviction on the conspiracy charge on the grounds that the military tribunal which tried them did not have jurisdiction to try them on the conspiracy charge. The respondents raised a preliminary objection to the jurisdiction of the High Court to entertain the action. The respondents contended, inter alia, that the High Court was precluded by the provisions of section 20 of the Courts Act, 1971 (Act 372), from exercising its supervisory powers over military tribunals. To the applicants' argument that section 20 of the Courts Act, 1971, was invalid because it was inconsistent with article 114 of the 1969 Constitution, the respondents replied that the High Court did not have the power to declare an enactment a nullity and must therefore refer that issue to the full bench of the Court of Appeal.74  Section 20 of the Courts Act, 1971 (Act 372) reads:

"20. The High Court of Justice shall have supervisory jurisdiction over all inferior Courts in Ghana and any adjudicating authority other than a military Court or tribunal and in the exercise of its supervisory jurisdiction shall have power to issue such directions, orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as it may consider appropriate for the purposes of enforcing or securing the enforcement of its supervisory powers." (The writer's emphasis.)

Abban J. overruled the jurisdictional objection based on section 20 of Act 372. He came to the conclusion that that section was inconsistent with article 114 of the Constitution, 1969, in as much as it sought to limit the wide supervisory jurisdiction conferred on the High Court by the Constitution. In his opinion, Act 372 was enacted under the authority of the suspended Constitution and its provisions could not therefore amend, limit or take away any jurisdiction conferred by the said Constitution on the High Court. The words "other than a military Court or tribunal" were clearly inconsistent with the provisions of article 114. Therefore in his opinion, they were to be considered inoperative from the date Act 372 came into effect.

It would be recalled that the respondent had argued that even if section 20 was invalid the High Court had no jurisdiction to nullify it and that the issue should be referred to the Court of Appeal which alone had the power to declare an enactment a nullity. The learned judge replied thus75:

"I concede that the power to make such a declaration is now reserved for the Court of Appeal. But I must point out that all that this court has done in the present case amounts only to construing the provisions of section 20 of Act 372 `with modifications' in order that full effect can be given to the provisions of article 114 of the Constitution which article ... forms part of the Proclamation. And this is within the spirit of section 29 (1) of the said Proclamation which provided that, `any enactment in existence immediately before the commencement of this Proclamation shall be construed with such modifications as may be necessary to give effect to the provisions of this Proclamation'."

The learned judge considered it a "sheer waste of time" to refer the matter to the Court of Appeal in a case like this one where the statutory provision was so patently invalid and cited the Maikankan76 and the Ex parte Adu-Gyamfi77 opinions in support of his holding.

It could therefore be said that even under military rule and in the absence of a constitution against which enactments could be measured, the courts did rely on both those provisions of the suspended Constitution that had been continued in force and the general provisions of the Proclamations establishing military rule as affording them guidelines to determine the validity of enactments. Admittedly, the scope for review of legislation under such a scheme was limited. Its exercise, however, could be considered as a salubrious check on what was usually considered the unlimited legislative authority of the military governments.

In reaching this conclusion, the writer is not unmindful of dicta, though obiter, in the Gbedemah78 and Benneh79 cases already discussed, suggesting that legislative enactments of the National Liberation Council were unreviewable. For a closer reading of the judgments in the two cases brings out clearly what the court meant in those cases. The Benneh opinion makes the point clearer. The full bench here was unmistakably referring to substantive constitutionality. There being no constitution, the full bench, it is submitted, was right in saying that no enactment could have been struck down, during the National Liberation Council interregnum, as unconstitutional. The Decrees were inviolable as far as their substance was concerned. Neither opinion made any reference to review on procedural irregularity.

Furthermore, there was nothing like section 29 (1) of the National Redemption Council Proclamation, 1972, in its predecessor the National Liberation Council Proclamation, 1966, so that the scope for judicial review under the National Redemption Council Proclamation could be said to be wider than under the National Liberation Council period. Consequently, it is submitted that nothing contained in the two judgments subverts the general view expressed here that, even under our military governments, our courts still possessed the power to review legislation.

CONCLUSION AND RECOMMENDATIONS

In this article, we have considered judicial review of legislation in Ghana since independence. The picture that unfolded itself was not altogether one to make it possible for a confident forecast of the future of review in the constitutional law of Ghana. A number of reasons have been advanced for the present attitude of the courts in Ghana to review of legislation. These have to a large extent been attributed to the myopic view of and a possible under-estimation of the potential of the power of review demonstrated by our courts. It has been suggested that part of the problem stems from the legal training received by most of the judges who occupy the superior bench in Ghana. We have also noted the rather disturbing practice by some judges of declaring enactments null and void in the face of clear constitutional provisions denying them such power. It has been urged on the courts that the discordant notes must be harmonised.

The preceding discussion has all been done within the context of the type of judicial review we have adopted since independence. To what extent has our choice been efficacious in promoting review? How much of the failure of the judges can we attribute to the system employed by our past independence Constitutions? These are questions which need serious attention and to which one may attempt some brief replies. Our discussion has clearly shown that the principle of the supremacy of the Constitution and its consequences do not give rise to much dispute. A fundamental problem however, is that of the proper means for ensuring this supremacy. Hitherto the task of determining the constitutionality of enactments has been entrusted to the highest court of the land at any given time, without a clear-cut guideline as to the role to be played by the lower courts. This has given rise to the unsatisfactory practice, we noted under the 1969 Constitution, of some High Court judges declaring acts a nullity where it seemed very clear that they did not possess the power so to do. The question therefore remains: how do we enforce the supremacy of the Constitution in the future?

The teachings of comparative law show us that there are many systems of judicial review of legislation in force in various countries. Basically there are three classes, namely, review by the ordinary courts of the land as for example, in the United States; review by the highest court of the land which is in fact a variant of the first class, of which Ghana is a good example; and thirdly, review by a special constitutional court. Those countries which adopt the third solution also show certain fundamental differences in their special courts. The composition of the special court shows whether it is a political court or a judicial court. Thus the West German Constitutional Court is undoubtedly a judicial body whilst all constitutional law experts agree that the French Constitutional Council is a political body. The Francophone African States also show some interesting models.80 Control of constitutionality of statutes, with the exception of Congo Brazzaville under the 1967 Constitution, is entrusted to the Supreme Court, the highest court of the land. Their Supreme Courts in general comprise several units. Control of constitutionality is exercised by the constitutional chamber. The composition of the constitutional chambers differs from country to country. The composition of the constitutional chamber in Ivory Coast for example, is political and that of Senegal is judicial in character.

Scholarship demands that we admit that the weakness of judicial review in Ghana so far is attributable in part to the system we have employed. It is therefore necessary that the system be modified. Given our experiences, it is submitted that the best solution is probably one that enables all courts in our judicial system to resolve questions of constitutionality when raised before them by parties in litigation. The other alternative is the creation of a special court outside the regular system as obtains in West Germany. But the drawback on this approach is that after the special court has determined the constitutional issue, the court before whom the point was raised has to act in accordance with that ruling. The time spent in the process does not appear justified. In the considered view of the writer, it should be possible for all courts in the judicial system to entertain and dispose of constitutional issues. There would be some saving in the cost of litigation if this suggestion is adopted.

One other drawback to be guarded against is the kind of detailed provisions that the 1969 Constitution contained on judicial review. The opportunities for raising questions of constitutionality were far too many and account for part of the unenlightening performance of our judges as they tried to get themselves out of the complex situation in which the Constitution had placed them. It is understandable that framers of Constitutions in Ghana would for a long time be haunted by the Akoto opinion and would strive to avoid such a situation recurring. Care, however, must be taken to ensure that we do not overshoot our mark as we appeared to have done with the 1969 Constitution.

In the long-run view, whether or not judicial review takes root effectively in Ghana would depend also to a large extent, on the willingness of the people of Ghana to allow constitutionalism to flourish. As Gunther rightly pointed out "making a constitution work is a difficult, subtle, complex process"81 which cannot be achieved by courts alone; nor can the mere existence of a written constitution make it succeed. The constitutional language and judicial actions, and perhaps most importantly the behaviour of political leaders and of all participants in the political process are all necessary.82  It implies an implicit faith in the constitutional ideal. Without this, neither the best disposition of the judiciary nor the most elaborate constitutional provisions would make judicial review take off from its starting block in the direction in which courts, elsewhere in the world, have been admirably performing.

It is the basic hope and belief of the present writer that the future looks bright if only we can learn from our past efforts and improve upon our tools for review.83

FOOTNOTES

*LL.M. (Ghana); Lecuturer in Law, Faculty of Law, University of Ghana, Legon.

1. See McWhinney, Judicial Review (1965), p. 13.

2. Capelletti and Adams, "Judicial Review of Legislation: European Antecedents and Adaptations" (1966) 79 Harv. L. Rev. 1207, 1224.

3. Capelletti, Judicial Review in the Contemporary World (1971) Ch. II passim.

4. 5 U.S. (1 Cranch) 137 (1883).

5. Capelletti, op.cit. note 3 above at p. 25.

6. Art. VI, para. 2.

7. However, not all scholars agree that the power of judicial review in the U.S. can be found in the supremacy clause. The issue, though now of theoretical importance only, is still controverted by many scholars. See generally Gunther and Dowling, Cases and Materials on Constitutional Law (1970).

8.  Kauper, "Judicial Review of Constitutional Issues in the United States" in Max-Planck-Institute, 568 at p. 611.

9. The problem of reconciling judicial review with democracy has been a vexed one in the United States. The views expressed in this section are essentially taken from articles published in Levy (ed.), Judicial Review and the Supreme Court. Selected Essays (1967).

10. Levy, op.cit. at p. 42.

11. Bickle, The Least Dangerous Branch (1962), pp. 27-28.

12. Capelletti, op.cit. note 3 above at p. 42.

13. Ibid.

14. On the Privy Council's review of legislation in the ex-British Colonies, see McWhinney, Judicial Review (1965), ch. 1.

15. D.C. (Land)'48-'51,307; (1951) 2 G. & G. 72.

16. Ghana (Constitution) Order-in-Council, 1957, Part V, in Gyandoh and Griffiths, A Sourcebook of the Constitutional Law of Ghana, Vol. 1, Part I, 128 at pp. 132- 134.

17. Ibid., s. 31 (2).

18. Ibid., s. 31 (3).

19. Ibid., s. 34,

20. Ibid., s. 33.

21. Ibid., s. 35.

22. Ibid., s. 32. 

23. (1957) 2 G. & G. 98.

24. See Lardan v. Attorney-General (No. 1) (1957) 2 G. & G. 96.

25. [1959] G.L.R. 181; (1959) 2 G. & G. 132.

26. Section 35 read: "When any Bill affecting the traditional functions or privileges of a chief is introduced into the Assembly and is read a first time, the Speaker shall forthwith refer such Bill to the House of Chiefs of the Region in which the Chief exercises his functions as such and no motion shall be moved for the second reading of the Bill in the Assembly until three months after the day on which the Bill was introduced into the Assembly."

27. Art. 31 (1) read.. "Subject to the provisions of this Order, it shall be lawful for Parliament, to make laws for the peace, order and good government of Ghana."

28. [1959] G.L.R. 181 at p. 186.

29. Rubin & Murray. The Constitution and Government of Ghana (1964), p. 197, footnote 24.  See also Bennion, The Constitutional law of Ghana (1962), p. 172.

30. Ibid.

31. Bennion, op. cit. at p. 172.

32. [1961] 2 G.L.R. 523; (1961) 2 G. & G. 183.

33. See (1961) 2 G. & G. 169 et seq.

34. See in particular art. 20(6) which reads: "Apart from the limitations referred to in the preceding provisions of this Article, the power of Parliament to make laws shall be under no limitation whatsoever."

35. See (1961) 2 G. & G. 163.

36. [1961] 2 G.L.R. 523 at p. 535.

37. Section 27 of C.A. 4 provides: "In an enactment made after the passing of this Act, `shall' shall be construed as imperative and `may' as permissive and empowering." Section 28 also provides: "Where a word is defined in an enactment other parts of speech and grammatical variations of that word have corresponding meanings." See also the explanations to these provisions in Memoranda to the Acts of Ghana, Vol. 1, pp. 12-13.

38. In 1958, the Constitution(Repeal of Restrictions) Act, 1958 (Act No. 38 of 1958), was passed. The effect of this Act was to make any part of the Constitution amendable by an ordinary Act of Parliament. Thus no Acts of Parliament could be invalidated on grounds of unconstitutionality.

39. The Proposals of the Constitutional Commission for a Constitution for Ghana. 1968, para. 324.

40. Constitutional Commission Decree, 1966 (N.L.C.D. 102), para. 4.

41. Op.cit. at p. 18.

42. For what is meant by the "spirit of the Constitution" and its role in the interpretation of the Constitution: see Tuffuor v. Attorney-General, Court of Appeal exercising the functions of the Supreme Court, 23 October 1980, to be reported in [1980] G.L.R. and digested in [1980] G.L.R.D. 71.

43. [1971] 2 G.L.R. 473 at p. 478, S.C.

44. The same criticism could be levelled against the recent decision of the Court of Appeal given on 15 May 1980 in Republic v. Special Tribunal; Ex parte Akosah to be reported in [1980] G.L.R. on when a constitutional issue is to be referred to the Supreme Court under art. 118(1)(a) of the Constitution, 1979.

45. For similar view, see Johnson, Alex "Power to declare an enactment a nullity" (1974) 6 R.G.L. 41 at pp. 48-49.

46. (1969) 2 G. & G. 438 at p. 439; (1970) C.C. 18, S.C. For a further comment on the Gbedemah case: see Read, J.S. "Judicial Power and the Constitution of Ghana" (1971) 3 R.G.L. 107 et seq.

47. By s. 8 of the Transitional Provisions of the 1969 Constitution, it was provided that the functions of the Supreme Court under art. 106 be performed by the Court of Appeal until a sufficient number of Justices for the due constitution of the Supreme Court had been appointed. The Court of Appeal sat on this case by virtue of that provision.

48. (1969) 2 G. & G. 442. The court was divided 4-1 with Azu Crabbe J.A. (as he then was) delivering a powerful dissenting judgment which to the constitutional lawyer showed a better awareness of the grave constitutional issues raised by the litigation.

49. (1970) 2 G. & G. 527.

50. Ibid. at p. 529.

51. (1970) 2 G.& G. 457.

52. Ibid. at p. 460.

53. Op.cit. note 39 above at p. 200.

54. See Dickey and Tsikata, "A look at Administrative Law in Ghana" (1972) 9 U.G.L.J. 135, at pp. 165-167; also Gyandoh, "Discretionary Powers in the Second Republic" (1971) 8 U.G.L.J. 98 for an analysis of this case. Cf. Ofosu-Amaah, "Review of the Position of Aliens in Ghana" (1971) 3 R.G.L. 88.

55. (1970) 2 G. & G. 493. The Prime Minister, Dr. K. A. Busia in a radio and television broadcast, shortly after the court had announced its decision, severely criticised the decision. The total number of dismissals purported to have been done under section 9 (1) of the Transitional Provisions was 568. Apart from Mr. Sallah none of the other persons affected brought an action.

56. The decision was by a majority of 3-2.  The State had made an attempt to remove some of the judges from the case, see (1970) 2 G. & G. 487. After the unsuccessful attempt Mr. Justice Siriboe announced his withdrawal from the case and so did not write an opinion.

57. (1970) 2 G. & G. 493 at p. 509. 

58. [1974] 2 G.L.R. 47, C.A. (full bench).

59. Ibid. at pp. 75-77, 89, especially 95-96.

60. [1972] 1 G.L.R. 317.

61. Section 52 provides.. "Notwithstanding anything to the contrary in this Act or any other enactment the Court of Appeal, the High Court, a Circuit Court and a District Court shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy."

62. See Johnson, note 45 above at p. 50; see also Ofori-Boateng, "Chieftaincy matters and Proceedings" (1974) 6 R.G.L. 93 at pp. 207-210 for a view that criticises the decision in Ex parte Adu-Gyamfi.

63. [1972] 1 G.L.R. 259.

64. Ibid. at p. 270.

65. For another decision in which a High Court purported to annul an enactment, see Abban J.'s judgment in Republic V. Military Tribunal; Ex parte Ofosu-Amaah [1973] 2 G.L.R. 227.

66. See McWhinney, op.cit. note 1 above at pp. 22-30.

67. These occurred in February 1966, when the Military remained in power until August 1969 and again in January 1972 when the Armed Forces again toppled the civilian government which had succeeded the military government that reigned between 1966 and 1969.

68. [1967]  G.L.R. 536 at pp. 545-546.

69.  For a similar judicial opinion of the N.L.C's legislative powers see Gbedemah's case (1969) 2 G. & G. 438 at p. 444.

70. [1968] G.L.R. 630.

71. The relevant provision reads: "3.(5) Any decree made by the National Liberation Council may be amended or revoked or suspended by another decree of the Council."

72. [1968] G.L.R. 646.

73. [1973] 2 G.L.R. 227.

74. The Courts (Amendment) Decree, 1972 (N.R.C.D. 101), abolished the Supreme Court established under the 1969 Constitution and transferred some of its powers to the full bench of the Court of Appeal.

75. [1973] 2 G.L.R. 227 at p. 239.

76. [1971] 2 G.L.R. 473, S.C.

77. [1972] 1 G.L.R. 317.

78. (1969) 2 G. & G. 438, C.A. (full bench).

79. [1974] 2 G.L.R. 47, C.A. (full bench).

80. See Gonidec, Les Droits Africains, pp. 89-116 passim. 

81. Gunther, "The Constitution of Ghana - An American's Impressions and Comparisons" (1971) 8 U.G.L.J. 2 at p. 26.

82. Ibid. at p. 11.

83. Editorial Note - For current constitutional provisions dealing with the power of judicial review generally: see arts 2(1)-(4), 114(1)-(3) and (8) and 118 of the Constitution, 1979.  See also Republic v. Special Tribunal; Ex parte Akosah, Court of Appeal, 15 May 1980, to be reported in [1980] G.L.R; digested in [1980] G.L.R.D. 67; Tuffuor v. Attorney-General, Court of Appeal, exercising the functions of the Supreme Court, 23 October 1980, to be reported in [1980] G.L.R.; digested in [1980] G.L.R.D. 71 and the decision of Taylor J. (as he then was) in Republic v. Special Tribunal; Ex parte Forson, High Court, Accra, 19 May 1980 to be reported in [1980] G.L.R.; digested in [1980] G.L.R.D. 63.