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JUDGMENT
BAFFOE-BONNIE JSC:-
The facts of this case are
fairly simple and generally
uncontroverted.
The 2ndDefendant is an employee
of the Ghana Highway
Authority(GHA), a member of the
ruling NDC party and he was
registered to contest as
constituency chairman.
The 3rd Defendant is an
administrative officer with the
Ghana Education Service(GES),
specifically, with Swedru High
School, a member of the ruling
NDC, and had registered to
contest for the position of the
constituency secretary.
It is the case of the plaintiff
that by virtue of the provisions
of Article 94(3)(b) the 2nd and
3rdDefendants are not qualified
to members of parliament and,
since they are not qualified to
be members of parliament, by
virtue of Article 55(8) they do
not qualify to contest for the
positions they are seeking for,
that is, constituency chairman
and secretary respectively.
Plaintiff’s submission is based
on the premise that both second
and third Defendants are civil
servants.
The reliefs the plaintiff seeks
are as follows:
i) A declaration that:
a). …. the inclusion of the 2nd
and 3rd Defendants by the 1st
Defendant to the list of
candidates contesting in the
constituency elections is
inconsistent with Articles 55
and 94 clause (3) (b) of the
1992 Constitution.
b).On the true and proper
interpretation of Articles 55(8)
94 clause (3) (b) of the
Constitution, and section 68(2)
of the Civil Service Act, 1993
PNDCL 327 the 2nd and 3rd
Defendants being Civil Servants
are precluded from participating
in active politics to the extent
of vying for executive positions
in the upcoming constituency
elections of 1st Defendant
because they are not eligible as
Members of Parliament and for
that matter cannot hold any
executive office in any
political party.
c).That on the true and proper
interpretation of the definition
of Civil Service as defined
under the Civil Service Act 1993
(PNDCL 327) the 4th Defendant is
part of the Civil Service and
as such, its members are
precluded from participating in
active politics. Therefore the
permission granted to the 2nd
Defendant to enable him contest
as a candidate in the
constituency elections of the
1st Defendant is null and void
and of no effect as its sins
against Article 94 clause (3)
(b).
d).That as the 2nd
and 3rdDefendants are
precluded from participating in
active politics by virtue of
them being civil servants, the 5thDefendant
contravened the Constitution
when it included their names in
the list of persons qualified to
contest for executive positions
in the 1stDefendant.
The inclusion of the 2nd
and 3rdDefendant by
the 5thDefendant as
candidates vying for executive
positions in the 1stDefendant,particularly
sins against Articles 55, 94
clause (3)(b) and section 68(2)
of the Civil Service Act (1993)
PNDCL 327.
The gravamen of the plaintiff’s
action is that the 2nd
and 3rdDefendants are
civil servants and their
inclusion in the list of
candidates contesting in the
constituency assembly elections
is inconsistent with Articles
55(8) and 94(3)(b) of the 1992
Constitution, since they are by
the said Articles precluded from
active politics. His contention
is that since the Defendants are
employees of the GES and the GHA
respectively, they are civil
servants and as such not
eligible or qualified to engage
in active political activities.
Article 55(8) of the
Constitution provides as follow;
“A political party shall not
have as a founding member, a
leader or a member of its
executive, a person who is not
qualified to be elected as a
member of Parliament or to hold
any other public office”
Article 94 of the Constitution,
which has its broad Heading
as ‘QUALIFICATIONS AND
ELIGIBILITY’,provides in
clause (3)(b) as follows;
‘A person shall not be eligible
to be a member of Parliament if
he is a member of the Police
Service, the Prisons Service the
Armed Forces, the Judicial
Service, the Legal Service, the
Civil Service, the Audit Service
the Parliamentary Service the
Fire Service the Customs Excise
and Preventive Service the
Immigration Service or the
Internal Revenue Service.’
Even thoughthe title of the case
shows 6 Defendants, it can be
seen from the reliefs being
sought that the real defendants
are the 2nd and 3rdDefendants.
We will therefore treat the
other Defendants as nominal
Defendants. The action against
them will be resolved based on
any declaration made in respect
of the 2nd and 3rdDefendants.
The plaintiff’s main plaint in
this writ is for a declaration
that the 2nd and 3rdDefendants
are civil servants and are
therefore disqualified from
entering parliament and so by
extension are disqualified from
holding leadership positions in
political parties.
Article 21 (3) of the
Constitution, states that:
“All citizens shall have the
right and freedom to form or
join political parties and to
participate in political
activities subject to such
qualifications and laws as are
necessary in a free and
democratic society and are
consistent with this
Constitution”
Any law therefore that seeks to
oust the enjoyment of the above
fundamental human right and
freedom must be couched in a
clear, unambiguous and direct
wording to that effect.
In the case of Minister of
Home Affairs &Anor V Fisher[1980]AC
319,Lord Wilberforce said
“ A constitution is a legal
instrument giving rise, amongst
other things, to individual
rights capable of enforcement in
a court of law. Respect must be
paid to the language which has
been used and to the traditions
and usages which have given
meaning to that language… and to
be guided by the principle of
giving full effect to those
fundamental rights and freedoms
with a statement of which the
constitution commences”.
Bamford Addo JSC
put it more succinctly in the
case of NPP V IGP
[1993-94] GLR 459 at
482. She said
“…..fundamental human rights are
inalienable and can neither be
derogated from nor taken away by
anyone or authority
whatsoever….This court is
therefore not permitted to give
an interpretation which seeks to
tamper in any way with the
fundamental human rights but see
that they are respected and
enforced”
Article 94(3) of the
Constitution sets out to clearly
and unambiguously oust some
persons from the enjoyment of
the right and freedom to
participate in political
activities. The provision is
clear and unambiguous. For
emphasis, Article 94(3) (b)
states as follows:
“(3). A person shall not be
eligible to be a Member of
Parliament if he…
(b). Is a member of the Police
Service, the Prisons Service,
the Armed Forces, the Judicial
Service, the Legal Service, the
Civil Service, the Audit
Service, the Fire Service, the
Customs, Excise and Preventive
Service, the Immigration Service
or the Internal Revenue Service;
or
(c) Is a Chief”
Why members of the listed
services are disqualified from
being members of parliament, and
whether their disqualification
is or is not discriminatory, is
not the subject of this ruling.
It can also be seen that all the
services listed under the
Article are also listed as
Public Services under Article
190 of the Constitution. Article
190 (1) provides as follows;
“The Public Services of Ghana
shall include:
a.
The Civil Service;
The Judicial Service;
The Audit Service;
The Education Service;
The Prisons Service;
The Parliamentary Service;
The Health Service;
The Statistical Service;
The National Fire Service;
The Customs, Excise and
Preventive Service;
The Internal Revenue Service;
The Police Service;
The Immigration Service; and
The Legal Service;
b. Public corporations other
than those set up as commercial
ventures.
c. Public Services established
by the Constitution; and
d. Such other Public Services
as Parliament may by law
prescribe.
Even though the GES is listed as
PUBLIC SERVICE, it is
specifically excluded from the
list of services whose members
are disqualified from becoming
members of parliament under
Article 94(1). Though the GHA is
not specifically listed it is a
state owned corporate body and
therefore comes under 190 (b).
Again, why some members of the
public services such as Judicial
Service, the Civil Service,
Police Service, Prison Service
etc., are disqualified while
other members of the Public
Service are not mentioned as
disqualified, is not the
complaint of the plaintiff.
We believe that if the framers
of the constitution wanted to
disqualify members of all
services listed under Public
Services, they would simply have
stated that “all members of the
Public Services” are so
disqualified. They wouldn’t have
listed some of the services
leaving others.
Confronted with a not dissimilar
situation the Supreme Court in
the case of,
Tehn-Addy V Attorney General
[1996 97]SCGLR 589
said,per Acquah JSC(as
he then was);
“Whatever the philosophical
thought on the right to vote,
article 42 of the !992
Constitution of Ghana makes the
right to vote a constitutional
right conferred on every sane
Ghanaian citizen of eighteen
years and above… As a
constitutional right therefore,
no qualified citizencan be
denied of it , since the
Constitution is the Supreme law
of the Land”
Again in the case of
Ahumah Ocansey V Electoral
Commission [2010] SCGLR 575,
this court upheld the right of
prisoners to be registered and
to vote. The Attorney General
had argued that in the public
interest prisoners be not
allowed to vote. He argued thus
“The question for us to answer
is whether it is in the public
interest that such persons
(prisoners) should have a role
in the election of the President
of this country
and Members of Parliament….. The
public interest is paramount. It
is in the interest of the
public that offenders are
punished and that they are kept
under lock and key….. The
absence of the right to vote by
prisoners is not a curtailment
of their right under the
constitution, but that in the
attempt to get them to exercise
the franchise, we do not forget
the pain, the mental agony,
despair, and experiences of a
vast majority of Ghanaians, who
have at one time or the other
been victims of criminals and
their hope, desire, and
expectations that criminals pay
for their crimes”
Lofty as these submissions
sounded, the Court rejected it
and unanimously held that the
right to vote is a
constitutionally guaranteed one,
and it is subject only to the
disqualifications under Article
42. Per Anin Yeboah JSC at
page 676
“Under article 42 of the
Constitution, it is a
constitutional right which the
framers of our constitution have
entrenched in the Constitution
to be enjoyed as a basic tenet
to democratic governance in
electing our leaders……..The
provisions of PNDC LAW 284
restricting the registration of
people to vote by insisting on
the residence of the voter and
thereby applying it to deny
convicted and remand prisoners
the right to register and vote……
runs counter to article 42 of
the Constitution”.
Even though the Tehn-Addy and
The Ahumah-Ocansey cases were
both on the right to register
and vote as enshrined in the
constitution, the principle
applicable in them is the same
as the case before us. The right
to participate in political
activities is a right
specifically guaranteed by the
Constitution, and any law or
constitutional provision that
seeks to limit this right must
be clear and unequivocal.
Going by the maxim of
exclusion uniusestesclusio
alterius as an aid to
interpretation therefore, we
hold that even though the GES
and the GHA are both Public
Services, their members are not
disqualified from becoming
members of Parliament and also
not disqualified from holding
executive positions in political
parties.
To navigate this legal quagmire
in which he finds himself, the
plaintiff chooses the shortest
possible route by just referring
to the 2nd and 3rd
defendants as CIVIL SERVANTS.
Hence his 2nd relief;
(b) “On the true and proper
interpretation of Articles 55(8)
94 clause (3) (b) of the
Constitution, and section 68(2)
of the Civil Service Act, 1993
PNDCL 327 the 2nd and 3rd
Defendants being Civil Servants
are precluded from participating
in active politics to the extent
of vying for executive positions
in the upcoming constituency
elections of 1st Defendant
because they are not eligible as
Members of Parliament and for
that matter cannot hold any
executive office in any
political party.(emphasis mine)
But the question is, as members
of the GES and the GHA, do the 2nd
and 3rdDefendants
belong to the Civil Service or
any of the services disqualified
under Article 94(3)(b) of the
Constitution?
We do not think so. Merely
referring to them as civil
servants does not make them
civil servants.
Let us first examine the
provisions of the various
establishing laws
Section 7 (1) of the Public
Services Commission Act, 1994
(Act 482) provides as follows:
“The Public Services of Ghana
include:
a.
The Civil Service;
The Judicial Service;
The Audit Service;
The Education Service;
The Prisons Service;
The Parliamentary Service;
The Health Service;
The Statistical Service;
The National Fire Service;
The Customs, Excise and
Preventive Service;
The Internal Revenue Service;
The Police Service;
The Immigration Service; and
The Legal Service;
b. Public corporations other
than those set up as commercial
ventures.
c. Public Services established
by the Constitution; and
d. Such other Public Services
as Parliamentary may by law
prescribe.”
The Ghana Education service Act,
1995 (Act 506) provides as
follows:
“2. The Service
shall be made up of –
a). the personnel of the
Ghana Education Service existing
immediately before the coming
into force of this act;
b). teachers and
non-teaching supporting
personnel in pre-tertiary
educational institutions in the
public system;
c). managers of
educational units and their
supporting staff;
d). persons holding posts
created as Ghana Education
Service Posts by or under any
enactment; and
e). other persons that
may be employed for the
Service.”
Section 12(1) provides “There
shall be appointed by the
President in accordance with
Article 195 of the Constitution
a Director General of the
Service, who is the Chief
Executive of the Service”
Section 4 provides for the
setting up of a governing
council for the service; the
membership of which is given in
section 4(2). The membership
includes …
4(2)(b) – a representative of
the Public Services Commission
not below the rank of director.
And
4(2)(l) – the Director-General
of the Service …
The GHA on the other hand is
created by Act 540. Section 18
of that Act provides for the
appointment of a chief executive
who shall be responsible for the
day to day business of the
Authority. The governing body of
the GHA is also provided in
section 5 of the Act. This
includes the chief executive of
the authority and others who are
all appointed by the President
in accordance with Article 70 of
the Constitution.
Membership of the Civil
Serviceis provided under Section
4 of Civil Service Act, 1993
(P.N.D.C.L. 327) as follows:
a). all persons serving in civil
capacity in posts designated as
Civil Service posts by or under
this law in-
i. Office of the Head State
other than the Secretary of the
Office of Head of State;
ii. Ministries;
iii. Government Departments at
the national level;
iv. Offices of Regional
Co-ordinating Councils;
v. Departments of Regional
Co-ordinating Councils
vi. Offices of the District
Assemblies;
vii. Departments of District
Assemblies and
viii. Any other Civil Service
department established by law or
under the authority of this law
the emoluments attached to which
are paid directly from the
Consolidated Fund or other
source approved by Government.
Section 5 (1) provides as
follows
“ … there is hereby established
the office of the Head of the
Civil Service”
Section 6(1) also provides
“There shall be a Head of the
Civil Service who shall be
appointed by the President,
acting in accordance with the
advice of the public service
commission in consonance of
article 193 of the Constitution”
The membership of the governing
body of the Civil Service is
provided under section 35 of the
Civil Service Act and it
includes the Chairman of the
Public Service Commission, the
Head of the Civil Service and
others.
It is clear from these
provisions, particularly the
provisions under Public Service
Commission Act, that the Civil
Service and all the other
services provided under that Act
are treated as separate from
each other. The GESand GHA are
definitely not part of the Civil
Service but rather are part of
the Public Services whose
members are public servants.
This can also be seen from
their governing bodiesand the
appointment of their Heads. The
governing council of the Civil
Service is the Civil Service
Council and the Chief Executive
of the Civil Service is the Head
of Civil Service, who is
appointed by the President with
the advice of the Public
Services Commission. The
governing body of the Ghana
Education Service on the other
hand is known as the Education
Service Council and its Head is
Director-General of Education
who is appointed by the
President also with the advice
of the Public Services
Commission. The governing body
of the Ghana Highway Authority
as provided by the Act, is a
Board of Directors and its Head
is designated as Chief
Executive, appointed by the
President with the advice of the
Public Services Commission.
The Head of the Civil Service is
neither a member of the
governing boards of the GES or
the GHA, nor does he exercise
any oversight responsibility
over either of these services.
In effect, neither the governing
bodies nor the Chief Executives
of these two Services is subject
to the direct or indirect
control of the Head of Civil
Service or the Civil Service
Council.
We believe the plaintiff’s
submission is based on an
erroneous appreciation of the
classification of the various
public services and their
relationship with the sector
ministries they relate to.
Whilst members of a ministry,
like the Ministry of Education,
are members of the civil
service, and the Minister of
Education is also the sector
Minister of the GES, members of
the GES are public servants and
not civil servants.
In the same vein whilst members
of the ministry of Roads and
Highways are civil servants, and
the Minister of Roads and
Highways is the sector Minister
of the GHA, members of the GHA
are public servants and not
civil servants.
We believe that the plaintiff
got it all wrong. The 2ndand
3rd defendants are
not civil servants and they are
not disqualified under article
94(3) from contesting for
executive positions in any
political party.
Consequently the plaintiff’s
action fails and same is
dismissed.
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE
SUPREME COURT
(SGD) S. A.
B. AKUFFO (MS)
JUSTICE OF
THE SUPREME COURT
(SGD) S. O. A.
ADINYIRA (MRS)
JUSTICE OF THE
SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
(SGD) V. AKOTO
BAMFO (MRS)
JUSTICE OF THE
SUPREME COURT
(SGD) A. A. BENIN
JUSTICE OF THE
SUPREME COURT
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
ALEXANDER KWAMINA AFENYO-MARKIN
ESQ.(WITH)
HIM KORKOR OKUTU) FOR THE
PLAINTIFF.
SAMUEL M. CODJOE ESQ. (WITH HIM
THEOPHILUS KPORVIE AND
EDWARD DARKWA) FOR THE 1ST
DEFENDANT.
SEAN POKU ESQ (WITH HIM KWAKU
A. NSIAH- ASARE) FOR THE
2ND AND 3RD
DEFENDANTS.
THOMAS GEORGE QUARCOO ESQ. FOR
THE 4TH DEFENDANT.
JAMES QUASHIE-IDUN (WITH HIM
ANTHONY DABI) FOR THE 5TH
DEFENDANT
HON. DOMINIC AYINE (DEPUTY
ATTORNEY GENERAL) WITH HIM
WILLIAM KPOBI (CHIEF STATE
ATTORNEY) FOR THE 6TH
DEFENDANT.
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