Constitutional law – Injunction – President – Supreme Court may restrain unconstitutional acts of President of Republic – Constitution 1992 art 1 and 2.

Constitutional law – Injunction – Parliament – Supreme Court may restrain unconstitutional acts of parliament – Constitution 1992 art 1 and 2.

Courts – Supreme Court – Jurisdiction - Political issue - Meaning of - Whether court has jurisdiction to determine political issues.

Constitutional law ­– Constitution – Indemnity clause – Meaning and scope – 31 December 1981 coup d’etat ­– Indemnity did not permit celebration of coup anniversary as public holiday or with State funds – Constitution 1992 art 3(4)(a), 35(6), 35(9), 41(b), 56, 1st Schedule s 34, Public Holidays Law 1989 (PNDCL 220) s 5.   

Constitutional law – Directive principles of state policy – Justiciability – Whether the directive principles of state policy justiciable - Constitution 1992, ch 6.

Supreme Court – Original jurisdiction – Issues for trial – Duty of court to gather the issues from statements of case of the parties – Court will not allow technicalities to becloud or stultify justice.

Law Reform – Public holidays – Need to expunge penalty for non-observance of public holiday – Public Holidays Law 1989  (PNDCL 220).

 Law Reform – Public holidays – Need to reduce public holidays – Public Holidays Law 1989 (PNDCL 220).

On 31 December 1981, the government of Ghana established under the Constitution 1979 was removed from power in a military coup d’etat. The coup makers then set up a provisional government, the Provisional National Defence Council (“the PNDC”), which ruled till 7 January 1993. During those 11 years, every 31st December was declared a public holiday and celebrated as such, in commemoration of the coup d’etat of 31 December 1981. On 7 January 1993, the Constitution 1992 came into force. It abolished and replaced the PNDC with a new constitutional order, principally an executive president, a parliament, both elected on the basis of a multi-party political system and an independent judiciary.

In December 1993, the government announced a programme for the celebration of the anniversary of the 31st December coup as a public holiday pursuant to the Public Holidays Law 1989 (PNDCL 220). The celebration included a route march by the security services and various voluntary organisations to be followed by a wreath-laying ceremony and musical carnival.

The plaintiff, a registered political party, instituted an action in the Supreme Court for a declaration that such celebration from public funds, of the overthrow of the legally constituted government contravened the Constitution 1992. It therefore sought the cancellation of the celebration.

The defendant contended that the plaintiff’s action constituted a challenge to the legality of the 31 December 1981 coup, which section 34(2) of the transitional provisions of the Constitution 1992 precluded. He argued that a nexus existed between the Constitution 1992 and the 31st December coup d’etat and submitted that the validity of the celebration of 31st December was a non-justiciable political question. He extolled the good works of the coup d’etat as a revolution and the NDC of which the President of the Republic was the Chairman and leader. He contended that NDC parliamentarians were elected on the party manifesto for the continuity of the good works. Finally, he submitted that the court had no jurisdiction to issue an injunction against the President or the State.

Held: Archer CJ, Abban, Bamford-Addo, Ampiah JJSC dissenting, (1) the plaintiff’s action did not relate to the abrogation of the Constitution 1979. Accordingly section 34(2) of the transitional provisions of the Constitution 1992, did not apply.

(2) Under articles 1 and 2 of the Constitution 1992, the Supreme Court could issue an injunction against the President or parliament. The President’s immunities under the constitution were limited in the sense that any action by him that offended the constitution would be avoided under article 1 of the Constitution 1992 and could be restrained. State of Mississippi v Johnson (1867) 71 US 475 referred to.

(3) The doctrine of political issue, that precluded a court from adjudicating upon such issue, did not apply in Ghana in view of articles 1 and 2 of the Constitution 1992. Political issues had arisen frequently on the interpretation of the constitution, enforcement of human rights provisions and in chieftaincy disputes in our courts. A constitution was a political document and an issue regarding its interpretation or enforcement would have some political dimension. To decline jurisdiction on such doctrine would constitute dereliction of the constitutional responsibility of the court and breach of articles 2 and 3 of the Constitution 1992. Baker v Carr 369 US 186 referred to.

(4) Section 34(2) of the transitional provisions of the Constitution 1992 did not legalise the 31st December coup but merely granted the coup-makers an indemnity in the nature of a pardon. It closed a chapter and commenced a fresh start. Recriminations, enmity and rancour that might be carried over from the past were proscribed. There was a tacit implication that it might not augur well for the country, if it were to be perpetually embroiled with the rights and wrongs of the past and the vengeful pursuit of the pound of flesh. With that setting, it was clearly unjust to exacerbate old wounds by permitting echoes of the past to reverberate and shatter the tranquility that the constitution sought to promote with its conciliatory arrangements. The pardon did not cover the observance of 31st December as a public holiday otherwise all the other coup dates mentioned in section 34 ought to be observed as public holidays. Discrimination against any such coup date would be unconstitutional yet no one would subscribe to the view that those dates were intended under the constitution as public holidays.

(5) The Constitution 1992 permitted freedom of association and the unrestrained liberty to promote and enjoy popular social forums and gatherings provided such group activities did not violate any law. In principle 31st December could be celebrated but not from State funds. However it should not be celebrated as a public holiday, in view of the sanctions imposed under PNDCL 220 s 5 for non-observance of public holidays. Besides article 3 of the Constitution 1992 had outlawed coups or reminders of it and articles 3(4)(a) and 41(b) imposed a duty on all Ghanaians to defend the constitution. The celebration of 31st December with carnivals, route marches etc, having a tendency to glorify the coup d’etat of 31st December, would weaken the people’s resolve to reject coups, thus undermining and subverting the constitution. The celebration would have the propensity of sending wrong signals to the youth that the overthrow of the constitutional order by a coup d’etat was glorious, and incite disrespect for constitutional authority. It would lead the security services into thinking that the overthrow of a duly constituted government enhanced the prestige, status and financial gain of a soldier who participated in such act and constitute an insidious and surreptitious undermining of the constitution. It seemed incongruous that after the pardon under section 34 of the transitional provisions, the commemoration of such an illegal event should be funded from state coffers or with sanctions for its non-observance as a public holiday.

(6) Since the people of Ghana had the constitutional duty to protect and defend the constitution, they could not by themselves, or by any one in their name, lay out monies and resources to play up the idea of coups, well knowing that it was bound to undermine the constitution. Celebrating 31st December with carnivals, festivities and riotous merry-making would be telling Ghanaians that the event was a happy one, a good one – such conduct would clearly be inconsistent with the duty to defend the constitution.

(7) The proposed celebration would violate article 56 of the Constitution 1992, which prohibited the imposition on the people of Ghana such unpopular programmes of a political nature. By definition, a celebration was a public observance, which honoured an event. It was accompanied by festivities and a general atmosphere of exhilaration, which extolled and praised the event it commemorated. If it were a public celebration, the entire public, except those in perpetual disgruntlement with life itself, would participate in the jolly making. But where, with the advent of 31 December 1981, a sizeable section of a people recited a litany of ills and perpetually relived them, it could not, with the best will in the world, be classified as an ideal scenario for a public celebration, nor could its baleful antecedents escape judicial notice. There would always be a substantial section of the citizenry who would never see joy in a 31st December celebration. It was for such section that articles 35(6)(a) and 35(9) imposed upon the State the duty to take appropriate measures to promote among the people of Ghana the culture of political tolerance. Inherent in article 56 was the impropriety to ram down people’s throats such unpopular programmes with set political objectives. Such conduct offended, if not the letter, at least the spirit or the conscience of the constitution. Logic and prudence would dictate the prohibition of such a public celebration. For it would only promote division and fly in the teeth of the constitutional injunction to let bygones be bygones.

Per Adade JSC: The world owes it to Shakespeare that: “The evil that men do lives after them; the good is oft interred with their bones.” It would seem this observation might be true of men only, not of governments: and that with governments the reverse is nearer the truth; and I may add: “So let governments take heed.” A statement such as “we are celebrating values and good works” can be self-serving, and may ignore the truth in the age-old adage that the length of the frog may be known only after its death.

Per Francois JSC: In the Christian world it is a corrective or chastening machinery to enforce the renunciation of evil ways, to obtain salvation. But no one in his proper sense would place such an event as the 31st December coup on a pedestal for worship and veneration. That would accord ill with the Lord’s own sense of justice. For it is not a day marked with rejoicing and festivities; rather it conjures the scenario of sackcloth and ashes. So 31st December receives the rebuff of conscience in its efforts at acclamation. The shroud of indemnity in s 34 of the transitional provisions completely mummifies the 31st December event and reduces it to an impotent, unmentionable event at law. It must remain so in its sarcophagus. We accordingly leave it to history and posterity, as better judges, to pronounce on the quality of that event, and give it its rightful place.

Per Amua-Sekyi JSC: A comparison was sought to be made between the celebration of 31st December as a public holiday and the celebration of 4 July in the United States, and of 14 July in France. No doubt the architects of the coups of 24 February and 13 January in Ghana were also certain that their work would endure. I would urge those who hold this view to show a little modesty and leave it to future generations to determine their place in history. Let them remember that Caligula made his horse Consul of Rome, and Nero played the lyre as Rome burned. They thought they were gods; we know they were not.

Per Aikins JSC: In my view the June 4th and 31st December processes occasioned a breakdown of law and order, the negation of the rule of law and a circumscription of the fundamental human rights and freedoms of the individual. The stability of the nation was shattered and polluted.

Per Hayfron-Benjamin JSC: The “gains of the revolution” constitute a political philosophy which remains to be tested under a multi-party democratic constitution. It makes no difference that the philosophy is being spearheaded by a particular party. As was said of early Christianity by Gamaliel, a Doctor of the Law: “ if this counsel or this work be of men, it will come to naught but if it is of God, ye cannot overthrow it; lest haply ye be found even to fight against God” (Acts 5: 38-39). For my part I can conceive a clear distinction between this laudable political philosophy and the “action of 31 December 1981.”

(8) The courts were sworn to uphold, preserve, protect and defend the constitution and laws of the Republic of Ghana, not to uphold or defend the manifesto of a political party. Significantly, the President, Ministers of his government and all the NDC members of parliament had sworn the oath of office to uphold, preserve, protect and defend the constitution, not a party manifesto. The Attorney-General’s submission regarding the NDC manifesto was untenable.

(9) The viewpoint that the directive principles of state policy contained in chapter 6 of the Constitution 1992 were not justiciable was misconceived. The constitution was a justiciable document and if any part were to be non-justiciable, the constitution itself would say so. The evidence to establish non-justiciability of the chapter must be internal to the constitution, not otherwise. External proof of non-justiciability must necessarily be in conflict with the constitution and inadmissible. The court must not add to the constitution to change its meaning. Articles 1(2) and 2(1) invalidating any rule of law inconsistent with the constitution extended to chapter 6 and supported the view that the chapter was justiciable. Besides it could not be said that the constitution imposed a duty under the chapter and yet thwarted its performance. The argument that the phrase “shall guide” in article 34(1) implied non-justiciability was unsupportable. Laws were for guidance, but not on that account non-justiciable. The consultative assembly could have expressly provided that the directive principles were non-justiciable if they so intended.

Per Hayfron-Benjamin JSC: This court has said times without number that it will not allow technicalities to becloud or stultify the need to do justice to the parties appearing before it. I think that in constitutional matters it is the clear duty of this court to gather the issues from the four corners of the statements of the case of the parties.

Per Archer CJ: Ghana has ten public holidays in a year and second only to Northern Ireland throughout the whole world which has eleven public holidays. Can a developing country like Ghana afford a string of holidays, which at times can be boring? The British colonial administration introduced six public holidays in this country in 1899. We have ten and I wonder what would be the number by the year 2000. In a country, where we have no old-age pension schemes, no unemployment benefits and no family benefits, I do not see why a person should not be permitted to work on public holidays to earn his living. It is monstrous to deprive him of the opportunity of earning some income to feed himself which because the Public Holidays Law 1989 (PNDCL 220) has ordained that he must observe a particular public holiday and he must rest whether he needs the rest or not. I leave this question to parliament and the executive for the answer.

Cases referred to:

Assam Railways and Trading Co Ltd v Inland Revenue Commissioners [1935] AC 445, [1934] All ER Rep 646, 103 LJKB 583, 152 LT 26, 50 TLR 540, 18 TC 509, HL.

Atto-Mensah v Republic [1967] GLR 562.

Baker v Carr 369 US 186 (1962).

Becke v Smith (1836) 2 M&W 191, 6 LJ Ex 54, 46 RR 567, 150 ER 724.

Besant v Wood (1879) 12 Ch D 605, [1874-80] All ER Rep 822, 40 LT 445, 27(1) Digest (Reissue) 274.

Capper v Baldwin [1965] 2 QB 53, [1965] 2 QB 53, [1965] 2 WLR 610, 129 JP 202, 109 SJ 192, [1965] 1 All ER 787, 63 LGR 163.

Condon, Re, ex parte James, (1874) 9 Ch App 609, [1874-80] All ER Rep 388, 43 LJ Bcy 107, 30 LT 773, 22 WR 937.

Donkor v Republic (Consolidated) [1971] 1 GLR 30, SC.

Egerton v Brownlow (1853) 4 HL Cases 1, 8 Str Tr (NS) 193, 23 LJ Ch 348, 21 LT (OS) 306, 18 Jur 71, 10 ER 359, HL.

Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, [1956] 2 WLR 81, 120 JP 54, 100 JP 54, 100 SJ 32, [1955] 3 All ER 864, 54 LGR 91, [1955] 2 Lloyd’s Rep 655, HL.

Ewart v Ewart [1958] 3 WLR 687, [1959] P 23, 123 JP 63, 102 SJ 861, [1958] 3 All ER 561.

Farley v Bonham (1861) 30 LJ Ch 239, 2 J &  H 177, 7 Jus (NS) 232, 3 LT 806, 9 WR 299.

Ghana Bar Association v Chief Justice [1993] WASC 1, sub nom Kuenyehia v Archer [1992-93] GBR 1260, SC.

Gibbons v Ogden 22 US (1824).

Goldsmiths’ Company v Wyatt [1907] 1 KB 95, [1904-7] All ER Rep 547, 76 LJKB 166, 95 LT 855, 71 JP 79, 23 TLR 107, 51 Sol Jo 99, CA.

Hilder v Dexter [1902] AC 474, 71 LJCh 781, 87 LT 311, 51 WR 225, 18 TLR 800, 7 Com Cas 258, 9 Mans 378, HL, 9 Digest (Repl) 239.

Hoani Te Heuhue Tukino v Aotea District Maori Land Board [1941] AC 308, [1941] 2 All ER 93, 110 LJPC 17, 57 TLR 419, PC.

IRC v Downdall O'Mahoney and Co [1952] AC 401.

Janson v Driefontein Consolidated Mines Ltd [1902] AC 484, 71 LJKB 857, 87 LT 372, 51 WR 142, 18 TLR 376, Com Cas 268, HL.

Kuenyehia v Archer [1992-93] GBR 1260, SC, sub nom Ghana Bar Association v Chief Justice [1993] WASC 1.

Kwakye v Attorney-General [1981] GLR 9, SC.

Kwakye v Attorney-General [1981] GLR 944, SC.

Lardan v Attorney-General (1957) 3 WALR 114.

Leader v Duffey (1888) 13 App Cas 294, 58 LJPC 13, 59 LT 9, HL, 49 Digest (Repl) 502.

Lumsden v IRC [1914] AC 877, 84 LJKB 45, 111 LT 993, 30 TLR 673, 58 Sol Jo 738, HL.

MacFoy v United Africa Company Ltd [1961] 3 All ER 1169, [1962] AC 152, [1961] 3 WLR 1405, 105 SJ 1067, PC.

Malm v Lutterodt [1963] 1 GLR 1, SC.

Manuel v A-G [1982] 3 All ER 822, [1982] 3 WLR 821, 126 Sol Jo 642, CA.

McCawley v The King [1920] AC 691, 89 LJPC 130, 123 LT 177, 36 TLR 387, PC.

Minister of Home Affairs v Fisher [1979] 3 All ER 21, [1980] AC 319, [1979] 2 WLR 889, 123 Sol Jo 387, PC.

Mirans, In re (1891) 1 QB 594, 39 WR 464, 7 TLR 309, 8 Morr 59.

Mosi v Bagyina [1963] 1 GLR 337, SC.

Powell v McCormach 395 US 486 (1969).

R v Loxdale (1758) 1 Burr 44.

Republic v Director of Prisons, ex parte Shackleford [1981] GLR 554.

Republic v Director-General of Prisons, ex parte Nti [1980] GLR 527, CA.

Republic v Maikankan [1971] 2 GLR 473.

Republic v Special Tribunal, ex parte Akosah [1980] GLR 592, CA.

Republic v Special Tribunal, ex parte Forson [1980] GLR 529.

Richardson v Mellish (1824) 2 Bing 252, [1824-34] All ER Rep 258, 1 C & P 241, 9 Moore CP 435, 3 LJOSCP 265, 12 Digest (Reissue) 296.

Sallah v Attorney-General (1970) 2 G&G 493, (1970) CC 55, SC.

Salomon v Salomon & Co Ltd [1897] AC 22, [1895-99] All ER 9, 66 LJ Ch 35, 75 LT 426, 45 WR 193, 13 TLR 46, 41 Sol Jo 63, 4 Mans 89, HL.

Scranton’s Trustee v Pearse [1922] 2 Ch 87, CA.

Smith v Brown (1871) LR 6 QB 729, 40 LJQB 214, 24 LT 808, 36 JP 264, 19 WR 1165, 1 Asp MLC 56, 1(1) Digest (Reissue) 271.

State of Mississippi v Johnson 71 US 475 (1867).

Sussex Peerage Case (1884) 11 C1&F 85, 6 State Tr (NS) 79, 3 LT (OS) 277, 8 Jur 793, 8 ER 1034.

Tuffour v Attorney-General [1980] GLR 637, SC.

ACTION by the plaintiff, a registered political party, for a declaration that the celebration with public funds of the anniversary of the overthrow on 31 December 1981, of the legally constituted government contravened the Constitution 1992 and an order directing the government to cancel the proposed celebration.

P A Adjetey (with Sam Okudzeto) for the plaintiff.

Martin Amidu (with Mrs Adusa-Amankwa) for the defendant.

ARCHER CJ. On 24 February 1966, this country witnessed the first coup d’etat in her political history. The government of the First Republic was overthrown by the Ghana Armed Forces in collaboration with the Ghana Police Force. A Proclamation was issued conferring both the legislative and executive powers of the State on the National Liberation Council. The judiciary remained unscathed after the Proclamation, which suspended the Constitution of the First Republic, which came into force on 1 July 1960.

On 22 August 1969, the second republican constitution came into force and the 1960 Constitution was abrogated. Part IV of the transitional provisions to the Constitution 1969 granted indemnity to those who staged the coup on 24 February 1966. Chapter 9 of the Constitution 1969 vested the judicial power of Ghana in the judiciary. Article 102(3) guaranteed the independence of the judiciary. For the first time in the legal history of this country, the American concept of the doctrine of separation powers could be discerned throughout that document namely, the powers of the legislature, the executive and the judiciary.

On 24 September 1979 the third republican constitution came into force. At this stage, it must be pointed out that the doctrine of separation of powers still pervaded the second and third republican constitutions there was not much difference in the substance and wording of the two constitutions except that in the second republican constitution there was provision for a ceremonial President and a Prime Minister whereas the third republican constitution re-introduced the presidential system of government.

On 31 December 1981 there was another coup d’etat and by a Proclamation, the Provisional National Defence Council was established. It governed this country until 7 January 1993 when the fourth republican constitution came into force. The present government, known as the National Democratic Congress, with two other parties, the National Convention Party and Egle Party, formed an alliance and assumed the reins of government. Under an existing law, namely, the Public Holidays Law 1989 (PNDCL 220), the present government notified the public of its programme to celebrate the anniversary of the 31 December 1981 revolution, which has been specified in the schedule to the Public Holidays Law 1989 (PNDCL 220). The intended celebration of the 31 December 1981 revolution invoked the wrath and indignation of interested sections of the

public who were vehemently opposed to coups.

On 21 December 1993, the plaintiff, a registered party issued a writ invoking the original jurisdiction of the Supreme Court under articles 2(1)(b) and 130(1) of the constitution and under rule 45 of the Supreme Court Rules 1970 (CI 13) claiming the following reliefs:

“(1) A declaration that the public celebration of the overthrow of the legally constituted government of Ghana on 31 December 1981, and the financing of such celebration from public funds is inconsistent with, or in contravention of the letter and spirit of the Constitution 1992 and more particularly articles 3(3), (4), (5), (6), 7, 35(1) and 41 thereof.

 (2) An order directing the government of Ghana to cancel all preparations for the celebration of the overthrow of the legally constituted government of Ghana on 31 December 1981 aforesaid and to refrain from carrying out any such celebration financed from public funds.”

The writ was issued against the Attorney-General as the defendant, who admitted almost all the averments in the statement of the plaintiff’s case but contended inter alia that 31st December, like all public holidays in Ghana, was a public holiday by virtue of the provisions of section 1 of the Public Holidays Law 1989 (PNDCL 220).

The defendant further contended that moneys were legally appropriated under the 1993 budget for the celebration of the historical values that the 31st December revolution stood for and that the Constitution 1992 established a nexus between the 31st December revolution and the fourth republican constitution. Also, the President of the Republic who was also a Ghanaian and the leader of the 31st December revolution and the members of parliament of the NDC, a party to which the President belonged, were elected on the party manifesto whose underpinning was continuity of the good works and values of the 31st December revolution. Lastly, the defendant maintained that what the plaintiff was seeking to do was to question the constitutionality and legality of the 31st December revolution, and the events which gave rise to that revolution on 31 December 1981 which should not be entertained by the court by virtue of section 34, particularly, sub-section 3, of the transitional provisions scheduled to the constitution.

Having considered the statements filed by both parties and their oral submissions during the hearing, I wish to say that I can discern sensitivities and susceptibilities on one hand, pitched against political statements interspersed with self-adulation and partisan platitudes. The invitation to this court is to descend into this arena and decide whose contention is constitutionally tenable. On my part I refuse to accept the invitation. Rather, I shall attempt to answer three questions. Firstly, which organ of State has power to pass laws to regulate public holidays? Secondly, can this court interfere with that legislation? Thirdly, can this court prevent the actual celebration with or without public funds?

Before the British colonial administration came to these shores to govern, we had holidays in various parts of the country among ethnic groups for the celebration of festivals restricted to various localities. Up to this day, farmers in different parts of the country do not farm on a particular day of the week. We all know that fishermen on the coast do not go fishing at sea on Tuesdays. Those days of rest are consistent with the biblical text in Genesis chapter 2 verse 2: “And on the seventh day God finished his works which he had made, and he rested on the seventh day from all his works which he had made.”

How did public holidays affecting the whole nation come into existence in Ghana? On 20 May 1899, the Public Holidays Ordinance (Cap 141) was enacted and the following days were declared public holidays: 1 January, Good Friday, Easter Monday, Whit Monday, His Majesty’s birthday, the first Monday in the month of August, Christmas Day, 26 December and all days which the Governor might by proclamation declare to be days of Thanksgiving or public holidays. Later, the Saturday following Good Friday and 24 May (Empire Day) were added. It is clear that from the origins of public holidays, only the legislature and the executive have had exclusive power to declare holidays.

The British Colonial government introduced public holidays here because observance of public holidays in England was governed by Act of Parliament. To be precise, in 1552 during the reign of Edward VI, parliament had enacted a law for the keeping of holidays and fasting days. The latter part of the Preamble reads:

“Neither is it to be thought that there is any certain Time or definite Number of Days prescribed in holy scripture, but that the Appointment both of the Time and also of the Number of the Days, is left by the Authority of God’s word to the Liberty of Christ’s Church, to be determined and assigned orderly in every country, by the Discretion of the Rulers and Ministers, as they shall judge most expedient to the true setting forth of God’s glory, and the Edification of their people.”

“Rulers and Ministers” are mentioned. Judges and courts are not mentioned. What started purely as religious holidays has been expanded to include holidays not necessarily connected with any religious observance.

After our Independence, the Public and Bank Holidays Act 1958 (No 1 of 1958) was enacted on 22 March to consolidate and amend the law relating to the observance of public holidays and bank holidays and for other purposes relating thereto. The holidays in the schedule were limited to Ghana Independence Day, 6 March, Good Friday, Saturday following Good Friday, Easter Monday, National Founder’s Day, 21 September, Christmas Day and Boxing Day.

After the 1966 coup, Liberation Day, 24 February was included in the schedule by the Public Holidays Instrument 1966 (LI 509) as a public holiday. The Public Holidays Decree 1972 (NRCD 18) omitted Liberation Day and substituted National Redemption Day (13 January). However, Liberation Day was reinstated by the Public Holidays (Amendment) Decree 1973 (NRCD 154) on 12 February 1973 and again removed from the schedule on 20 February 1974 by the Public Holidays (Amendment) Decree 1974 (NRCD 244). It should be observed that up to 21 June 1974 business and trade were carried on during public holidays without any restriction. By the stroke of the pen the Public Holidays Decree 1974 (NRCD 262) was passed to prohibit business and trade on National Redemption Day, Independence Day or Republic Day but pharmacy shops, restaurants, hotels and markets could open for the sale of food and alcohol or to provide essential public services. Penalties were imposed for contravention. In effect, motor mechanics, electricians, plumbers, hairdressers and other commercial or industrial activities were subjected to restrictions.

These prohibitions were retained by the PNDC when it passed the Public Holidays Law 1989 (PNDCL 220) and omitted the National Redemption Day from the schedule but added 1 May (Workers Day), 4 June and 31st December and subsequently Farmers Day, first Friday in December.

It is clear from the narrative I have given that the declaration of public holidays has always been within the exclusive domain of either the legislature or the executive. The courts have never interfered with the exercise of these powers. The present suit is unprecedented. There are no previous decisions to go by as guidelines and I think this court should consider this suit with retrospection, introspection and circumspection.

The gist of the plaintiff’s case is that the celebration of 31st December as a public holiday is inconsistent with, or in contravention of the letter and spirit of the Constitution 1992. The plaintiff relied on article 3(3), (4), (5), (6) and (7), also article 3(2) which reads as follows:

“(2) Any activity of a person or group of persons which suppresses or seeks to suppress the lawful political activity of any other person or any class of persons or persons generally is unlawful.”

I must confess that I find it extremely difficult to agree that the mere declaration and celebration of a public holiday will suppress or seek to suppress the lawful political activity of any other persons or class of persons or persons generally. There is nothing in the Public Holidays Law 1989 (PNDCL 220), which prohibits the holding of political rallies or meeting on public holidays, including 31st December. Article 3(3) also provides as follows:

“Any person who

(a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or

(b) aids and abets in any manner any person referred to in paragraph (a) of this clause,

commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.”

When article 3(3) is applied to the averments in the plaintiff’s statement of case, it is impossible to conclude that the celebration of the public holiday will amount to suspension, overthrow or abrogation of the constitution. The “letter of the constitution” relied upon by the plaintiff does not fit the averments, and the averments are not caught by the letter. With this conclusion, I do not think it is necessary to refer to or deal with articles 3(4), (5), (6) and (7).

The plaintiff also has relied on the spirit of the constitution. I understand this reliance to be simply this - the Constitution 1992 has said good-bye to all coup d’etat and has introduced constitutional democracy. Therefore, nothing should be done to remind Ghanaians of the past by paying premium to the events that occurred on 31 December 1981. Wherein lies the spirit of a constitution? Is it embedded in the whole document or in parts of the document? When we interpret statutes, we do not rely on the spirit of the Act. This maxim of interpretation applies also to a constitution. When the words are clear and unambiguous, we do not go further to imagine or speculate on what the words mean. What I know is that at times it becomes necessary to find out the intention of the legislature. This is what is meant by the intendment of the legislature. When one applies the intendment of the consultative assembly, it is clear that the constitution makers did not intend that the averment in the plaintiff’s statement of claim against the defendant could amount to a violation of or inconsistency with the constitution. Mere remembrance of an event in the political history of this country cannot amount to subversion of the constitution. Human memory at times can be more accurate than the mechanism of a tape recorder, which can also be faulty at times. When one records something on a tape, the recording can be erased and the tape can be re-used. The human memory is eternal and everlasting. One cannot obliterate historical events from the minds of men who witnessed the event. Can we prevent Ghanaians from reminiscing on the events of 31 December 1981, if they choose to? Certainly not.

I have found it unnecessary to dive and delve further into what is meant by the spirit of the constitution because I am convinced that it is a cliché used in certain foreign countries when interpreting their own constitutions which were drafted to suit their own circumstances and political thought. Whether the word spirit is a metaphysical or transcendental concept, I wish to refrain from relying on it as it may lead me to Kantian obfuscation. I would rather rely on the letter and intendment of the constitution.

Should the declaration sought be granted? I have already referred to the doctrine of separation of powers, which pervaded the 1969 and 1979 Constitution, which now permeates the Constitution 1992. The present constitution guarantees the independence of the judiciary which is subject only to the constitution and this is reinforced by article 125(3) which provides as follows:

“The Judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”

The constitution gives the judiciary power to interpret and enforce the constitution and I do not think that this independence enables the Supreme Court to do what it likes by undertaking incursions into territory reserved for parliament and the executive. This court should not behave like an octopus stretching its eight tentacles here and there to grab jurisdiction not constitutionally meant for it. I hold that this court has no constitutional power to prevent the executive from proclaiming 31st December as a public holiday because the executive would be applying existing law in PNDCL 220, which can only be amended by parliament.

Under section 30, Part IV of the transitional provisions, the first President under the Constitution 1992, by constitutional instrument, may at any time within twelve months after assuming office as President, make such provision as may appear necessary for repealing, modifying, adding to or adapting any law for the purpose of bringing it to accord with the provisions of this constitution or otherwise for giving effect to this constitution. At the time the writ was filed, the President had not repealed, modified the first schedule to PNDCL 220, which was existing and therefore the executive could rely on it. Parliament, which has the power to enact laws, has not also bothered to modify the first schedule to PNDCL 220. If Ghanaians including the plaintiff feel very strongly about 31st December as a public holiday, the door is not closed to them. They should urge their representatives in parliament to amend the schedule by deleting any public holiday that is obnoxious and undesirable. It is not the function of this court to effect such amendments or repeals. It would amount to a naked usurpation of the constitutional powers of parliament.

Now what about the other relief sought?

“An order directing the government of Ghana to cancel all preparations for the celebration of the overthrow of the legally constituted government of Ghana on 31 December 1981 aforesaid and to refrain from carrying out such celebration financed from public funds.”

I have always held the view that this court like equity must not act in vain. In other words it should not make orders that could be lawfully and legitimately circumvented so as to make the court a laughing stock. Under the Constitution 1992 the President is the Commander-in-Chief of Ghana Armed Forces. Suppose he accepts the declaration sought and confers with his commanders and service chiefs not to hold any route marches on 31 December 1993, yet the non-commissioned officers who were instrumental in staging the 31st December revolution choose to parade through the streets of Accra, who can stop them? Is this court going to send judges, magistrates, registrars, court bailiffs and ushers to erect barricades in the paths of the marchers? Again suppose notwithstanding the orders of this court, the members of the governing party and their allies choose to celebrate 31st December with picnics, processions and dances. Who can stop them? I must confess that the more I ponder over the reliefs sought the more I become convinced of the futility of the orders being sought. I think this is a case, which requires realism, pragmatism and foresight on the part of this court.

The other ambit of the relief sought is for an order directed at the government to refrain from carrying out any such celebration financed from public funds. The defendant admitted “that money was legally appropriated under the 1993 budget which were lawfully being used for the celebration of both the historical values that 31st December revolution stood for and the first anniversary of the Fourth Republic which was born out of the values of the 31st December revolution.” I shall ignore this innocuous political rhetoric in this admission and attempt to answer the question whether the judiciary in this country has ever had the opportunity and power to prevent parliament from appropriating money for use by the executive.

Article 108 provides:

“Parliament shall not, unless the bill is introduced or the motion is introduced by, or on behalf of, the President -

(a) proceed upon a bill including an amendment to a bill, that, in the opinion of the person presiding, makes provision for any of the following-

(i) the imposition of the taxation or the alteration of taxation otherwise than by reduction; or

(ii) the imposition of a charge on the Consolidated Fund or other public funds of Ghana or the alterations of such charge otherwise than by reduction, or

(iii) the payment, issue or withdrawal from the Consolidated Fund or other public funds of Ghana of any moneys not charged on the Consolidated Fund or any increase in the amount of that payment, issue or withdrawal; or

(iv) the composition or remission of any debt due to the Government of Ghana; or

 (b) proceed upon a motion, including an amendment to a motion, the effect of which, in the opinion of the person presiding, would be to make provision for any of the purposes specified in paragraph (a) of this article.”

I have quoted this article in extenso to demonstrate the procedure the constitution has laid down for the provision of monies for the government to administer the country. It is only the President who, as the head of the executive can go to parliament to seek financial provision charged upon the Consolidated Fund. Nowhere in this article is the role of the judiciary mentioned. Yet this court is being invited to prevent the government from spending monies which parliament has constitutionally provided for government use. I think if the order is granted it would amount to judicial officiousness - poking our noses into the affairs of parliament and intermeddling with the prerogative of the executive by directing the government not to spend monies approved by parliament. Such a move clearly amounts to a violation of the doctrine of separation of powers, which is the core of our constitution. If this court interferes, then what is the necessity for the office of Auditor-General under chapter 13, article 187 of the constitution?

It is being maintained that the monies voted for the celebration of the 31st December holiday amount to misapplication of public funds. It is not the duty of this court to don the mantle and cloak of the Auditor-General whose duty under article 187(2) is to audit all public accounts of Ghana and, within six months after the end of the immediately preceding financial year, to submit his report to parliament, drawing attention to irregularities in the accounts audited and to any other matter which in his opinion ought to be brought to the notice of parliament. My opinion is based purely on the doctrine of separation of powers as regards parliament, the executive and the judiciary, which augurs well for this country.

The defendant has averred that the plaintiff’s case is an attempt to challenge the validity of the transitional provisions. For my part I do not want to carry coal to Newcastle because my views on the transitional provisions can be found in Kwakye v Attorney-General [1981] GLR 944. I stand by every word I said in my judgment in that case. If one spirit of the constitution is to bid farewell to all coups, there is yet another spirit of the constitution through the transitional provisions which in effect exhorts and admonishes all of us to forgive all those who staged previous coups. However, it does not say we should forget. That will be impossible. I hope I will not be mistakenly referred to as a supporter of coups. In this regard I wish to refer to my judgment in Atto-Mensah v Republic [1967] GLR 562 in the Cape Coast High Court at page 586-7 where I cited the famous American-Spanish philosopher, George Santayana.

“Revolutions are ambiguous things. Their success is generally proportionate to their power of adaptation and to the re-absorbtion within them of what they rebelled against. A thousand reforms have left the world as corrupt as ever, for each successful reform has founded a new institution, and this institution has bred its new and congenial abuses.”

This is what I said on 2 October 1967, when the National Liberation Council had consolidated its power and had reached the apogee of its revolution. It was the first coup in this country and my words were to alert the Council to the wise words of George Santayana.

Before I end I wish to refer to a submission made by learned counsel for the plaintiff. He mentioned the penalties in the Public Holidays Law 1989 (PNDCL 220). These penalties were introduced for the first time in this country by the National Redemption Council, headed by Mr Acheampong. I say “Mr” because, as we all know, he was deprived of his military rank of “General” by the Supreme Military Council under military law, which I must respect. As far as I know, no prosecution has taken place and I hope there will not be any. In a country, where we have no old-age pension schemes, no unemployment benefits and no family benefits, I do not see why a person should not be permitted to work on public holidays to earn his living. It is monstrous to deprive him of the opportunity of earning some income to feed himself because a law has ordained that he must observe a particular public holiday and he must rest whether he needs the rest or not. At this stage, I shall refrain from expressing any views as to whether or not these restrictions and penalties constitute violations of fundamental human rights. But is it morally right and just that a self-employed person should be prevented from working on a public holiday to earn his living? I leave this question to parliament and the executive for the answer.

Finally, I wish to make an observation. Before this action was instituted Ghana had ten public holidays throughout the year and second only to Northern Ireland throughout the whole world which has eleven public holidays. One of them is 12 July in commemoration of the Battle of the Boyne in 1690 when the forces of Roman Catholic King James II were defeated by the Protestant forces of King William III, Prince of Orange. Up to this day, the Protestants in Ulster celebrate this public holiday with marches through the streets of Belfast without any obstruction or protestation from that Catholic minority - what an admirable tolerance. Ghana has more holidays. Can a developing country like Ghana afford a string of holidays, which at times can be boring? I leave the answer to parliament and the executive. The British colonial administration introduced six public holidays in this country in 1899. We have ten and I wonder what would be the number by the year 2000.

In conclusion, I am of the opinion that this court, in view of the doctrine or concept of separation of powers embedded in our past and present Constitutions, is not competent to grant the relief sought by the plaintiff.

I have demonstrated that this court would be guilty of three inexcusable and unconstitutional trespasses; first a trespass into the domain of parliament, secondly, a trespass into the territory of the executive and thirdly a trespass into the terrain of the Auditor-General. These trespasses should be avoided by not granting the

declaration and the orders sought.

ADADE JSC. On 31/12/81 the government of Ghana, established under the Constitution 1979, was removed from power in a military coup d’etat. The coup-makers then set up their own Government provisionally, until such time that another constitutional government could come into being. The government was christened the “Provisional National Defence Council” (PNDC). That provisional government ruled for 11 years, 31/12/81 to 7/1/93. During those 11 years, every 31st December was declared a public holiday and celebrated as such, in commemoration of the military coup of 31/12/81, an event, no doubt, of great historical significance.

On the 7/1/93 Ghana’s new constitution came into force, and with it, a new constitutional order. The PNDC was abolished and it ceased to exist with effect from that date, by virtue of the provision in section 36(1) of the transitional provisions, that:

“Upon the coming into force of this Constitution, the Provisional National Defence Council (Establishment) Proclamation 1981 and the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions) Law, 1982 (PNDCL 42) shall cease to have effect.”

With these words, the PNDC became defunct. New institutions were established for the governance of the realm, principally an executive President, a parliament (both elected on the basis of a multi-party political system) and an independent judiciary.

On 14/12/93 the Ghanaian Times, a state-owned daily newspaper published a release from the Information Services Department of the Ministry of Information, detailing a programme of activities intended for the celebration of the 12th anniversary of the 31st December coup, and the 1st anniversary of the Fourth Republic. The publication read:

“A release issued by the Information Services Department in Accra said the highlight of activities marking the December 31st revolution in Accra would be a route march to be followed by a wreath-laying ceremony at the Revolution Square. Taking part in the route march will be the security services and various voluntary organizations. There will be a musical carnival at the Trade Fair Centre in the afternoon. The release said on January 7, the first anniversary of the inauguration of the Fourth Republic, there would be a ceremonial parade of the security services and voluntary organisations at the Independence Square to be followed in the afternoon by a cultural display. The celebrations would be rounded off with non-denominational thanksgiving services on January 9 in all parts of the country. GNA.”

On or about 19/12/93, the government, acting by the Minister of Interior, announced to the nation that 31 December 1993 among others, would be a public holiday and celebrated and observed as such. The announcement was carried by the People’s Daily Graphic, also a state-owned daily newspaper, on 20/12/93, as follows:

“Holidays - The Ministry of the Interior has announced that Saturday December 25, Christmas day, Sunday December 26, Boxing day and Friday December 31 revolution day are statutory holidays. A statement issued in Accra said Saturday January 1 is New Year’s day and that Friday January 7, will be observed as the Fourth Republic Day. It said in accordance with section two of the Public Holidays Law, since Christmas, Boxing and New Year Holidays fall on non-working days, Monday December 27, Tuesday December, 28 and Monday January 3 have been declared public holidays instead. GNA.”

Clips of the publications referred to above were annexed to the defendant’s statement of case as annexures A (Ghanaian Times) and B (People’s Daily Graphic).

On 21/12/93, the plaintiff, one of several registered political parties in the country, instituted the present action against the government of Ghana for the reliefs endorsed on their writ as follows:

“(1) A declaration that the public celebration of the overthrow of the legally constituted government of Ghana on 31 December 1981, and the financing of such celebration from public funds is contrary to the letter and spirit of the Constitution 1992 and more particularly to articles 3(3), (4), (5), (6) and (7), and 35(1) and 41(b) thereof.

(2) An order directing the government of Ghana to cancel all preparations for the celebration of the overthrow of the legally constituted government of Ghana on 31 December 1981 aforesaid and to refrain from carrying out any such celebration financed from public funds.”

Relief (1) was later amended, without objection from the defendant, to read:

“A declaration that the public celebration of the overthrow of the legally constituted government of Ghana on 31 December 1981, and the financing of such celebration from public funds is inconsistent with, or in contravention of the letter and spirit of the Constitution 1992 and more particularly articles 3(3), (4), (5), (6) and (7), and 35(1) and 41(b) thereof.”

The amendment does not strike me as effecting any substantial change in the original claim, except, perhaps, that it enabled the plaintiff to sail as closely as possible to the letter of article 2(1) of the constitution.

On the same day that the plaintiff filed their writ of summons, ie 21/12/93, they also filed an application for interim injunction to restrain the government of Ghana from “all activities and preparations made or being made towards the celebration of the overthrow of the democratically elected government of Ghana on December 31, 1981 as announced.” The application was put before a 5-member panel of this court on Thursday, 23/12/93. It became obvious to the panel that a ruling on the motion either way was bound to undermine the fate of the substantive suit. Besides, granting or refusing the application to await the hearing of the main case after 31/12/93, sometime in the New Year, would be tantamount to shutting the stable door after the horse has fled. The court decided therefore that in the circumstances the justice of the case required that the substantive suit be heard as a matter of urgency prior to 31 December 1993. The application for injunction was adjourned to be taken with the substantive suit. The action was eventually heard on 29 December 1993, and a decision pronounced in favour of the plaintiff but we reserved our reasons.

The plaintiff invokes the original jurisdiction of the court under article 2(1) of the Constitution 1992, which provides that:

“2(1) A person who alleges that -

(a)                                                                                           an enactment or anything contained in or done under the authority of that or any other enactment; or

(b) any act or omission of any person;

is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

To succeed, the plaintiff must bring themselves squarely within article 2. It has been said that familiarity breeds contempt. Article 2 has, since its enactment, been repeated so often, both in the courts and elsewhere, that we run the risk of glossing over, or completely ignoring or missing its true import. It must be emphasised that under the article, the conduct complained of need not contravene anything in the constitution; it is enough if that conduct is inconsistent with any provision of the constitution. An act contravenes an enactment if it breaches that enactment, if it is contrary to that enactment. But an act need not be contrary to an enactment, to be inconsistent with it. In other words, the act may be inconsistent with the enactment, even though it does not necessarily breach it. Maybe the dividing line is thin but there surely is a dividing line.

The plaintiff contends that the public celebration of the anniversary of the coup of 31/12/81 out of public funds is “inconsistent with, or is in contravention of the letter and spirit of the Constitution 1992.” As to the letter of the constitution the plaintiff refers “more particularly to articles 3(3), (4), (5), (6), (7), and articles 35(1) and 41(b) thereof.” In argument before this court, the plaintiff added article 41(f).

It is necessary therefore to look at these articles with a view to ascertaining whether in letter they have been contravened. For this purpose I reproduce these articles in full. Article 3 is sub-titled “Defence of the Constitution.” Clauses (3) - (7) read:

“3(3) Any person who -

(a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or

(b) aids and abets in any manner any person referred to in paragraph (a) of this clause

commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.

(4) All citizens of Ghana shall have the right and duty at all times-

(a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and

(b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article.

(5) Any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of this Constitution as referred to in clause (3) of this article, commits no offence.

(6) Where a person referred to in clause (5) of this article is punished for any act done under that clause, the punishment shall, on the restoration of this Constitution, be taken to be void from the time it was imposed and he shall, from that time, be taken to be absolved from all liabilities arising out of the punishment.

(7) The Supreme Court shall, on application by or on behalf of a person who has suffered any punishment or loss to which clause (6) of this article relates, award him adequate compensation, which shall be charged on the Consolidated Fund, in respect of any suffering or loss incurred as a result of the punishment.”

Looking at the relevant clauses of article 3, I can readily see that in their letter the only provisions relevant to this case are articles 3(3) and 3(4). The remaining clauses of the article deal with actual acts of, or attempts at suspending, overthrowing, or abrogating this constitution; the duty to resist such acts or attempts; and compensation, to be paid out of public funds, to persons who may suffer damage in the process of resisting such acts or attempts.

The plaintiff also refers to articles 35(1), 41(b) and 41(f). These say:

“35(1) Ghana shall be a democratic state dedicated to the realisation of freedom and justice; and accordingly, sovereignty resides in the people of Ghana from whom Government derives all its powers and authority through this Constitution.

41 The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen

(b) to uphold and defend this Constitution and the law;

(f) to protect and preserve public property and expose and combat misuse and waste of public funds and property¼“

Before embarking on the merits of the case, let me comment on the challenge to the jurisdiction of this court, raised by the defendant. The defendant says that this court has no jurisdiction to entertain the action. The reasons he offers for this contention are: Firstly, that the action seeks to question the legality or otherwise of the coup of 31 December 1981, because section 34 of the transitional provisions provides:

“34(2) It is not lawful for any court to entertain any action ¼against the government of Ghana or any person ¼in respect of any act ¼relating to ¼the overthrow of the government in power before the Provisional National Defence Council; or

(b) the suspension or abrogation of the Constitutions of 1960, 1969 and 1979”.

From this the defendant argues that the court cannot inquire into the legality or constitutionality of the events of 31st December. Secondly, that the orders sought by the plaintiff, especially in their claim (2), are in the nature of an injunction against the President or the State, and that this court has no jurisdiction to issue such an injunction. Thirdly, that the question whether 31st December should be celebrated or not is a political question, which this court is not entitled to decide; “it should be left to coordinate arms of government to deal with,” it was said.

From the reasons given, I am satisfied that the objection to the court’s jurisdiction is, with respect, misconceived for the following reasons: Firstly, the action herein does not seek to question the legality of the 31st December coup. Indeed, it is unnecessary for anyone to mount an action for that purpose. A coup d’etat is, by definition, an illegal act; it is treason. It is therefore needless, and a waste of everybody’s time, for anyone to ask a court to declare that an act, admitted to be a coup d’etat, is illegal. Section 34 of the transitional provisions relied on for the argument, takes the fact of the coup and its illegality as data. It is on the basis of this data that the immunity is conferred by that section. The section does not seek to stop anyone from questioning its legality. No illegality is presumed. What the section does is to free the persons covered by it from punishment or paying compensation to anyone. Even so, in a disputed case, it is for the court to determine whether the defendant is covered by the section or whether the relief sought should or should not be granted, having regard to the tenor of section 34 of the transitional provisions. It is a misconception to allege that the suit herein seeks to question its legality or otherwise. The action is not harking back to 31/12/1981, and asking the court to declare the coup illegal. It is looking forward from 7/1/93, and saying that whatever the nature of the event, legal or illegal its anniversary after 7/1/93 should not be celebrated out of public funds and other resources. In particular, the action here neither relates to the overthrow of the government of the 3rd Republic nor to the abrogation of the Constitution 1979. Accordingly section 34(2) is of no assistance to the defendant.

Secondly the defendant contends that ordering that 31st December be not observed as a public holiday, and celebrated out of public funds, is tantamount to issuing an injunction against the President or the State, and that this court cannot, and should not, issue such an injunction. The defendant cites in support of this contention the American case of State of Mississippi v Johnson 71 US 475 (1867). The two holdings in the Johnson case read:

“1 The President of the US cannot be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional, nor will a bill having such a purpose be allowed to be filed.

2 It makes no difference whether such incumbent of the Presidential Office be described in the bill as President or simply as a citizen of the State.”

In that case, the State of Mississippi had filed a motion for leave to apply for a perpetual injunction against the President of the US from carrying out certain duties under the Reconstruction Acts which the President had previously vetoed as unconstitutional, but which Congress had nevertheless passed into law on 2nd and 23rd March 1867. It is unnecessary to discuss this case in detail. It is enough to say that in the course of its opinion the court distinguished between a ministerial duty (where, it was said, the officer exercised no discretion in the matter), and executive functions (where the officer had a lot of discretion to play with). At page 498 the court observed as follows:

“In each of these cases [ie Marbury v Madison and Kendall v Stockton … where the court issued mandamus against ministerial officers to compel them to do certain acts nothing was left to discretion. There was no room for the exercise of discretion¼Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws [are] the acts named in the bill¼An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterised, in the language of Chief Justice Marshall, as ‘an absurd and excessive extravagance’.”

The court proceeded:

“It is true that in the instance before us the interposition of the court is not sought to enforce action by the executive under constitutional legislation, but to restrain such an action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of executive discretion.”

The main reason the court gave for not interfering in the exercise of executive discretion is to be found at pp 500-501 of the report:

“Suppose the bill filed and the injunction prayed for is allowed. If the President refuses obedience it is needless to observe that the court is without power to enforce its process. If on the other hand the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of government? May not the House of Representative impeach the President for such refusal? And in that case, could this court interfere, on behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction, the Senate of the US from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court [ie the Senate]?”

The court then concluded:

“...we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.”

If I seem to have quoted these passages too extensively, it is because without such detail we may be unable to see readily the dangers inherent in uncritically receiving and applying foreign decisions. Assisted by this detail, it becomes only too apparent that, given our constitution, and in particular articles 1 and 2, this court can issue injunctions against the President, and even against parliament. The fears expressed by the US court will appear to be groundless in our situation. Once an Act offends the constitution, it is null and void under article 1 of the Constitution 1992. And once it is null and void the President or the executive can be restrained from enforcing or obeying it. Besides, by our constitution, the executive can be restrained by injunction from doing any act, which is not in conformity with the constitution. Therefore the US decision in Mississippi has no relevance whatever in the case before us. It is only to be hoped that passages from it may not be taken out of context and flung at unsuspecting persons, making it appear that in issuing injunctions or making other orders against the President, this court is exceeding the limits of its jurisdiction; it is not. The constitution allows it. In this connection I agree with Mr Adjetey that the President’s immunities under the constitution are of a limited and qualified nature, and that cases coming under article 2 are, by necessary implication, excepted and not covered by any immunities.

Thirdly, the argument that the case is a political one, and ought not to be entertained by this court is also buttressed on another American case, Baker v Carr 369 US 186 (1962). In that case the plaintiff, by a group action, had asked the District Court for the Middle District of Tennessee to declare that the Tennessee Apportionment Act 1901 was unconstitutional, and to issue an injunction restraining the defendant from conducting any election under the Act. Constituencies were supposed to be demarcated on the basis of population densities. The plaintiff’s contention was that the defendant did not follow this criterion or any criterion at all in demarcating the constituencies, thus placing the plaintiff “in a position of constitutionally unjustifiable inequality.” The District Court threw out the case on the ground, inter alia, that it was a political question, and that the District Court lacked jurisdiction. On appeal, the Supreme Court reversed the District Court, and remitted the mater to it to be heard, on the ground that the writ raised a justiciable issue.

This conclusion would seem to be against the defendant and contrary to the defendant’s position in this case. But that, to me, is not the important point. The case further illustrates the difficulties in applying foreign decisions, especially where passages are lifted out of context. Reading the report in Baker, it is abundantly clear that the US has developed a special doctrine of “political questions” based on the federal nature of their constitution and their system of separation of powers. It is this special circumstance which is at the bottom of the notion that political questions are not justiciable by the District Courts. A few passages from the report may be of some assistance. The head notes contain excerpts from the Annotated US Supreme Court Digest relevant to the case. At page 666, para 18, giving the source of the doctrine of “political question” it is stated:

“18 The relationship between the judiciary and the coordinate branches of the federal government, and not the federal judiciary’s relationship to the states, gives rise to the ‘political question’ doctrine.”

And paragraph 19, on the criteria for determining a political question, says:

“19 In determining whether a question falls within the category of “political questions”, the appropriateness under the American system of government of attributing finality to the action of the political departments, and the lack of satisfactory criteria for a judicial determination, are dominant considerations.

20 The non-justiciability of a political question is primarily a function of the separation of powers.”

Then paragraph 21:

“Deciding whether a matter has in any measure been committed by the Federal constitution to another branch of government, or whether the action of that branch exceeds its authority, being itself a delicate exercise in constitutional interpretation, is a responsibility of the US Supreme Court as ultimate interpreter of the Constitution.” (Emphasis supplied.)

Thus it would seem that even in the US the doctrine of political question does not apply to the US Supreme Court, the ultimate interpreter of the constitution, as our Supreme Court too is the ultimate interpreter of our constitution. In any case, by virtue of articles 1 and 2 of the Constitution 1992, that doctrine cannot have any application in Ghana. With us, issues of constitutional interpretation are justiciable only by the Supreme Court, and not by any other court. See article 130. Then also it must be remembered that questions of human rights tend to have large components of political issues. Yet in our constitution these questions are reserved for the High Court in the first instance “without prejudice to any other action that [may be] lawfully available,” to a litigant; (article 33 of the Constitution 1992). Similarly chieftaincy disputes almost always involve local, and often national, politics. But these disputes are cognisable only by “chieftaincy tribunals” in the first instance, the Supreme Court coming in only as a court of last resort. (See chapter 22 of the Constitution 1992).

The conclusion is inescapable, that in this country we have no doctrine of political question such as exists in the US. What we have is a written constitution, to be interpreted and enforced, with the result that in Ghana courts and tribunals much lower in the hierarchy than the Supreme Court may lawfully decide cases which may involve political questions. In further reaction to the defendant’s argument that the issue is a political one, it must be understood that the constitution itself is essentially a political document. Almost every matter of interpretation or enforcement which may arise from it is bound to be political, or at least, to have a political dimension.

In its report on a proposed constitution for Ghana, the Akuffo-Addo Commission observed:

“90 The dominant cry in all the evidence both oral and by memoranda which we received is that never again should there be tyranny in Ghana ¼

94 We appreciate that there is much politics involved in our proposals relating to the defence of democracy. Our recent experience, however, makes it imperative that there should be specific constitutional provisions to safeguard democracy.”

I must say that in spite of these carefully woven constitutional provisions and safeguards, democracy could not be protected, as we all witnessed on 13/1/72. The point, however, remains that provisions relating to the protection of the constitution and the defence of democracy are by nature political. And these provisions this court is by the constitution, required to interpret and enforce. Therefore to refuse to do a constitutional case on the ground that it is political is to abdicate our responsibilities under the constitution, and to breach, in particular, article 2 and article 3. Thus the invitation to decline jurisdiction on that account is an invitation to this court to act unconstitutionally, which invitation itself is unconstitutional, as it cannot but be subversive of the constitution. I must reject that invitation.

There is another matter, which must be disposed of along the way. As stated earlier, the plaintiff relies, inter alia, on articles 35 and 41. Both these articles come under chapter 6 of the constitution, titled: “The Directive Principles of State Policy.” It has been maintained in certain quarters that these directive principles are not justiciable, and therefore cannot avail the plaintiff. I am aware this idea of the alleged non-justiciability of the directive principles is peddled very widely, but I have not found it convincingly substantiated anywhere. I have the uncomfortable feeling that this may be one of those cases where, a falsehood, given sufficient currency, managed to pass for the truth. I do not subscribe to the view that chapter 6 is not justiciable; it is.

Firstly, the constitution as a whole is a justiciable document. If any part is to be non-justiciable, the constitution itself must say so. I have not seen anything in chapter 6 or in the constitution generally, which tells me that chapter 6 is not justiciable. The evidence to establish the non-justiciability must be internal to the constitution, not otherwise, for the simple reason that if the proffered proof is external to the constitution, it must of necessity conflict with it, and be void and inadmissible; we cannot add words to the constitution in order to change its meaning.

Secondly, article 1(2) speaks of inconsistency with any provision of this constitution; and article 2(1) makes reference to inconsistency with or contravention of a provision of this constitution. None of these articles expresses an exception in favour of chapter 6. Does it not follow that chapter 6 too, along with the rest of the constitution is in the contemplation of articles 1 and 2?

Thirdly, the very tenor of chapter 6 supports the view that the chapter is justiciable. The opening of article 34 of the chapter reads:

“(1) The directive principles of state policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society.”

This is a compendious provision, grouping together a whole host of state institutions and other bodies, discharging different functions. The language employed therefore has been such as caters for these different functions. As far as the judiciary is concerned I ask myself the question: How do the directive principles guide the judiciary in applying or interpreting the constitution if not in the process of enforcing them?

The position becomes even clearer if related to the duties created by article 41; how is the judiciary to assist or facilitate the performance of a citizens’ duty to, eg, combat misuse of public funds (under article 41(f)), if this is not in the course of enforcing another citizen’s duty not to misuse public funds? Put illustratively, citizen A, in discharge of his duty under article 41(f) tries to stop citizen B from misusing public funds. Can citizen A turn to the judiciary for help? If no, why not, given the wording of 34(1). If yes, what role will the judiciary be playing, short of enforcing article 41(f)?

As was observed in Tuffour v Attorney-General [1980] GLR 637 at page 649-650 in relation to the Constitution 1979:

“The Constitution confers on every citizen of Ghana by article 1(3): ‘the right to resist any person or persons seeking to abolish the constitutional order as established by this Constitution, should no other remedy be possible.’ This means that every citizen of Ghana has the right, constitutional or otherwise, to see to it that the constitutional order as established by the Constitution is not abolished or sought to be abolished. One method by which it could be determined whether a person is seeking to abolish the constitutional order, is to seek for an interpretation of the Constitution as to the meaning or effect of a particular provision or provisions of the Constitution.”

Substitute article 41 for article 1(3), and “duty” for “right” in the above passage, and you have in my view the correct interpretation of the said article 41, or by extension, of any of the provisions of chapter 6. I cannot see that the constitution will impose a duty (article 41) and then turn round to thwart its performance. Such a bizarre intention must be shown by express words or an implication that is imperative. It has been said that the use of the phrase “shall guide” in article 34(1) implies that the directive principles are not meant to be justiciable. This argument is obviously weak and unimpressive. After all, all laws are for our guidance, but they are not on that account, non-justiciable. If the consultative assembly in 1992 had intended to make the principles non-justiciable they could have said so: they did not. Apart from article 12(1), which expressly states that chapter 5 (fundamental human rights and freedoms) shall be enforceable by the courts, no other chapter is expressed so to be. Yet no one has argued that those other chapters of the constitution are for that reason unenforceable. Chapter 5 would be enforceable, even without that direction. The appearance of that phrase in article 12(1) and its absence from chapter 6 therefore cannot be used as a justification or ground for interpreting chapter 6 as unenforceable.

I concede that in its report, the committee of experts appointed in 1991 by the PNDC to make proposals for a draft constitution did say (at p 49, paragraph 95) that: “By tradition directive principles are not justiciable¼“ The Committee did not say what that tradition was or is. That statement could, unintentionally, be misleading. In the consultative assembly it was recognised that the Constitution 1979 was the first of our several constitutions in Ghana (ie Constitution 1957, Constitution 1960, amended in 1964, and Constitution 1969) to introduce the idea of directive principles. Both the committee of experts and the consultative assembly relied almost entirely on chapter 4 of the Constitution 1979 for the debates on, and form of, the directive principles contained in the Constitution 1992 as chapter 6. The committee of experts acknowledged this much at p 49 of their report:

 “The Committee used chapter 4 of the 1979 Constitution as a basis for its deliberations¼“ (para 94)

From such acknowledgement it would appear that the tradition the committee had in mind was that commenced by or traceable to, the Constitution 1979. If the committee contemplated any other tradition, it did not so indicate. In any case, as at the time the committee was appointed in 1991, Ghana had, in this respect, a tradition, in the Constitution 1979, it is legitimate to conclude, in the absence of contrary evidence, that the committee meant the Ghana tradition. By that tradition, viz in the Constitution 1979, the directive principles were justiciable, which clearly contradicts the committee’s statement. There was nothing in the constitution which said they were not. For purposes of confirming this interpretation, reference may be made to the parliamentary history of the chapter, which is a permissible practice.

The question of the justiciability of the chapter on directive principles was debated at length in the 1979 Constituent Assembly. At its 20th sitting on Friday 2 February 1979 the Assembly expressly resolved to make the chapter justiciable.

“Mr Chairman [Justice V C R A C Crabbe]: Now I am going to put the Question. And the question is: is the amendment as proposed by Mr Zwennes that we should make Chapter Four non-justiciable be accepted by the House?”

The question was then put. The result of the exercise was: “Question put and negatived.” Therefore the House rejected the idea that the directive principle should be non-justiciable; in other words that they should be justiciable. Given the importance of the subject to the Assembly, a member after the voice vote, asked for a head-count, and then a recording of names. In both, the “justiciable group” defeated the “non-justiciable group.” (See sheets 64-67 of the manuscripts of the Official Report of the Constituent Assembly Debates of 2 February 1979, from the archives of parliament). A member then tried to get the whole chapter removed from the constitution. That attempt was also defeated. The debates confirm the interpretation that in the absence of anything in the constitution to the contrary, chapter 4 of the directive principles in the Constitution 1979 was justiciable. By the same yardstick chapter 6 of the Constitution 1992 is also justiciable.

The 1992 consultative assembly, obviously misled by the committee of experts, assumed wrongly that: “directive principles of state policy” are traditionally non-justiciable.” (Observe the similarity in language). Apparently not satisfied with the perceived character of directive principles the assembly endeavoured to upgrade them to what they termed “a higher moral level” to make them “imperative”, which everybody is “required mandatorily to observe.” This was on a motion to change “are for the guidance of” in the original draft of article 34(1) to “shall guide” as we now have it. (See the Consultative Assembly Debates, 22/1/92 Col 1593).

It seems clear that but for the statement of the committee of experts, different considerations might have prevailed in the consultative assembly. In any case, even if the debates in the consultative assembly may charitably be interpreted as exhibiting some intention to make the directive principles non-justiciable, that intention was not carried into the constitution. The debates themselves are inadmissible to contradict the language of the constitution. That is not permissible.

“We are not concerned with what parliament intended, but simply with what it has said in the statute. The statute is clear, and the parliamentary history of a statute is wisely inadmissible to explain it, if it is not [clear]” per Lord Coleridge CJ in R v Hertford College (1878) 3 QBD 693 at 707.”

The maxim is parliamentum voluisse quod dicit lex. What the law says is the wish of parliament, ie the language of the statute expresses the intentions of parliament. We may also turn with profit to Lord Halsbury LC in Hilder v Dexter [1902] AC 474 at 477 where the court held:

“¼ in construing a statute ¼the worst person to construe it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed. At the time he drafted the statute, at all events, he may have been under the impression that he had given full effect to what was intended, but he may be mistaken in construing it afterwards, just because what was in his mind was what was intended, though perhaps it was not done.”

Similar sentiments were expressed by Lord Wright in Assam Railways and Trading Co Ltd v Commissioners of Inland Revenue [1935] AC 445 at 458:

“But on principle on such evidence [ie recommendations from a Report of a Royal Commission] for the purpose of showing the intention, that is, the purpose or object of an Act is admissible; the intention of the Legislature must be ascertained from the words of the statute with such extraneous assistance as is legitimate ¼It is clear that the language of a Minister of the Crown in proposing in parliament a measure which eventually becomes law is inadmissible [as evidence of the intention of parliament].”

We are advised in Maxwell on Statutes, 10th ed p 27 that: “the inference to be drawn from comparing the language of the Act with the declared intention of its framers would be that the difference between the two was not accidental but intentional.” The learned author gives the example of the Dower Act of 1833 (C 105) which he says at pp 27-28 “was construed to apply to gavelkind lands, although this was avowedly contrary to the intention of the Real Property Commissioners who prepared the Act - for they state in their report that it was their intention that the Act should not extend to lands of that tenure.” The case cited for this is Farley v Bonham (1861) 30 LJ Ch 239.

Thus what the debates in the consultative assembly said cannot be admitted to contradict what chapter 6 says or does not say. In my view therefore, chapter 6 is justiciable, in the same manner, as all the other chapters of the constitution are justiciable. The plaintiff is perfectly in order seeking to rely on any of the provisions of the said chapter 6, as it has indeed done.

Reading the relevant provisions of the constitution as a whole the impression is unmistakable that the idea is, inter alia, to ensure that never again shall a constitution be suffered to be overthrown or undermined by any means, and that the people of Ghana must resolve never to entertain any such overthrow or undermining. Of course, this does not mean that adventurers may not try. But the constitution imposes a duty on all to see to it that whoever ventures does not succeed; see article 3(4), (5), (6) and (7).

The defendant says relying upon article 3(3), that celebrating 31st December cannot be said to be suspending or overthrowing the constitution so as to require any defensive action by anyone under article 3(4). In other words, the act of celebrating 31st December does not offend anything in the constitution, and that that act cannot be pushed under article 2. The plaintiff, on the other hand, contends in line with article 2, that the date 31st December is contained in an enactment, PNDCL 220; that the celebration is an act to be done under the authority of that enactment, and that the act of celebrating is inconsistent with [some provisions] of the constitution.

Clause (4)(a) of article 3 has two separate and distinct parts. There is, firstly, the general right and duty to resist anyone committing, or attempting to commit, or aiding and abetting anyone to commit, any of the offences mentioned in clause 3 of article 3. Defending the constitution under article 3(4)(a) therefore need not be a defensive action against persons coming within article 3(3), ie persons engaged in a violent overthrow of the government or of the constitution. Indeed the constitution may be defended against the government itself.

Article 3(4) confers a right, and both article 3(4)(a) and article 41(b) impose a duty, on all Ghanaians to defend the constitution. The celebration of 31st December with carnivals, route marches etc., having a tendency to glorify the coup d’etat of 31st December, will weaken the people’s resolve to enforce this right, or perform this duty; ie their resolve to frown upon, and, or reject coups, a result which will have the effect of undermining and subverting the constitution. It is an insidious and surreptitious way of undermining the constitution. The celebration may not be a violent means (article 3(3) (a)), if only because its result is a subversion of the constitution. It is what an Honourable member described as a subversion “not by violence, but by the very government that is in existence, by the deeds and misdeeds of the government”, per Hon Pius A Austin, Consultative Assembly Debates, 15/1/92, col 1532). And for the sake of completeness if I may quote (Hon Mohammed Mumuni, Consultative Assembly Debates, 15/1/92 col 1417):

“I believe that we are dealing with a principle, and when we are dealing with a principle, you either wholly keep it, or wholly reject it. You cannot compromise over a principle. We are saying that at this stage of our political development we must come out positively and assuredly against any form of political adventurism.”

Any form of political adventurism indeed, whether by violent means or by other unlawful means! See article 3(3)(a). If the people have a constitutional duty to protect and defend the constitution, the same people cannot by themselves, or by any one in their name, lay out monies and resources to play up the idea of coups, well knowing that this is bound to undermine the constitution. Celebrating the occasion with carnivals, festivities and riotous merry-making would be telling us that the event was a happy one; it was a good one. Such conduct will clearly be inconsistent with the duty to defend the constitution.

Certain days have, from long before the days of independence and after, stood the test as national public holidays, and have always been celebrated as such without question. These include 1 January (New Year’s Day), 6 March (Independence day), the Easter Holidays (ie Good Friday, Holy Saturday, Easter Monday), 1 July (Republic Day), 25 December (Christmas Day), and 26 December (Boxing Day). These days one will find in every enactment relating to public holidays (for the periods to which the enactments apply), from the Public Holidays Ordnance Cap 141 of 1899, through the Public and Bank Holidays Act (No 1/1958), the Public Holidays Act 1960 (Act 23) and others, right through all the military regimes (NLC, NRC, SMC, PNDC) as well as the few Republics which have punctuated these military regimes. There are other days, which appear at one time or other, that are decreed as national public holidays, only to vanish later, never to surface again.

It has been the convention that “coup days” have, by the fiat of the coup-makers when they are in power, always been celebrated as public holidays, ie as special occasions and, or as days of thanksgiving. Significantly enough these coup holidays do not survive the relative “coup regimes”, an indication of their inherent weakness as national days. Thus 24 February, celebrated during the NLC regime, ceased during the 2nd Republic and after, so also did 13 January cease in the 3rd Republic and thereafter.

Squadron Leader (rtd) C M K Sowu, speaking on what he termed “the mechanics of overthrowing a constitutional rule by force of arms” observed:

“It is true also that many people are not aware that since 1957, in this country, we have either overthrown the constitution, the administration, every three years, until 31st December 1981.”

He then proceeds to supply further and better particulars:

“The first overthrow of the Constitution was in 1960. The second overthrow of that Constitution of 1960 was in 1963. It is true that at that stage, certain people attempted to resist it within the House and they suffered for it. Then the 1966 coup - we had the first military coup - and I think 1969, 1972, 1975, 1978 and 1981.” (Consultative Assembly Debates 15/1/92 col 1429).

The Honourable chronicler does not give us the precise dates of these coups, but surely he must have done his homework very well before giving the information to the august body. From the narrative, we learn that from 1966 to date there have been no less than six military coups, including 1981. During the 10 to 11 years rule of the PNDC none of those other 5 coup dates was ever celebrated as a public holiday and observed as such, except of course that of June 4, 1979, for obvious reasons. It may be true to say that in none of these cases was the celebration of its anniversary carried into the next succeeding regime, civilian or military, unless it be by default, which would appear to indicate that, there is no logic in insisting that 31st December must continue to be celebrated as a national holiday and be financed out of public resources, even after the coup regime to which it relates has ceased to exist, unless the defendant is claiming that the present regime which came into being on and after 7/1/93 is the same as the immediately preceding one of the PNDC, which he has not expressly done to my knowledge.

But the defendant seeks to justify the expenditure of public funds on the grounds that the celebration is not meant to commemorate the coup event itself, but the values, which that event brought about. These values counsel enumerated as, inter alia, workers’ participation in government; rights of spouses, later to be codified as the Intestate Succession Law 1985 (PNDCL 111); popular participation in decision-making etc. This submission is obviously an elaboration of paragraph 14 of the defendant’s statement of case, which pleads also “the party [NDC] manifesto whose underpinning was continuity of the good works and values of the 31st December revolution.”

To contend that the celebration is not intended for the 31st December revolution is to concede that the 31st December revolution as an event ought not to be celebrated, which is precisely what the plaintiff is asking this court to declare. And as to celebrating “the good works and values” said to have been brought about by that event, I can find no better comment than the words of the Hon Squadron Leader (rtd) C M K Sowu, whom I have already quoted:

“Each time a government is toppled here, the first accusing words we use is (sic) that that government has mismanaged the economy of the country; the second accusing words that follow are that they have misused power; the third accusing words are that they had been corrupt and the fourth accusing words are that we as a people have been apathetic.” (Consultative Assembly Debates, Wed 22/1/92 col 1609).

The world owes it to Shakespeare that: “The evil that men do lives after them the good is oft interred with their bones.” It would seem this observation might be true of men only, not of governments, and that with governments the reverse is nearer the truth; and I may add: “So let governments take heed.” A statement such as “we are celebrating values and good works” can be self-serving, and may ignore the truth in the adage that the length of the frog may be known only after its death. It also shows that we may not have learnt our lessons of history as well as the Hon Squadron Leader. Such an assertion cannot be a constitutional justification for elevating an event of non-national interest into a national one, on which to expend national resources.

Section 34 of the transitional provisions on indemnity is too well known to require reproduction. The said section as already stated, presupposes that the event which took place on 31 December 1981 was not a lawful one, and that this fact is conceded by the PNDC, among others. The section does not legalise the coup of 31 December 1981 nor any of the coups mentioned there. It only grants the coup-makers an indemnity, in the nature of a public pardon, to free certain persons from liability and punishment for, in the instant case, the event of 31st December and its sequel, which acts have been carefully spelt out under, particularly, article 34(2). It seems to me incongruous that after this pardon of a conduct considered improper and unlawful (for there would be no need for a pardon if the conduct were lawful and proper), the public would seek to romanticise the same event with carnivals and route marches. An exhibition of a more inconsistent behaviour than this in a people, including members of the government, cannot be imagined, justifying the plaintiff’s action under article 2(1)(b).

Besides, those few persons – the pardoned few, that is considering the total population of Ghana, cannot, should they happen to control the levers of power within the state, cock a snook at the public and the constitution which have given them the pardon, by a public commemoration of the very acts for which they have been pardoned, using public money and resources in the process! Such conduct must certainly offend if not the letter, at least the spirit or (as the committee of experts put it) “the conscience” of the constitution. See also Tuffour v Attorney-General [1980] GLR 637 at page 647.

Article 41(f) enjoins every citizen“(f) to protect and preserve public property and expose and combat misuse and waste of public funds and property.” If, as I conceive it to be, the celebration of the 31st December revolution in the circumstances in which it is sought to be celebrated is unjustified, then any expenditure of public funds in that regard will be a misuse and waste of public funds. The plaintiff is entitled to proceed under the said article as a matter of duty to combat such misuse, with a view to protecting and preserving public property.

The question may be asked: What would have become of the 31st December revolution had the elections of November 1992 gone differently? The defendant’s answer to this question is in paragraph 13 of his defence, viz “that the Constitution of 1992 establishes a nexus between the 31st December revolution and the Constitution itself.” No argument was addressed to us on this “nexus”, and I am not sure I understand paragraph 13 of the defence. If the paragraph is intended for the several references to the PNDC and the coup of 31 December 1981 in the transitional provisions, section 34, it must be clear to all that the said section does no more than offer an indemnity, a pardon, to all coup-makers, dead or alive, who overthrew governments on 24/2/66, 13/1/72, 4/6/79, as well as 31/12/81. This pardon has nothing to do with whether 31st December should continue to be observed as a public holiday or not. Otherwise all the other coup dates mentioned in section 34 of the transitional provisions should also be observed as public holidays and celebrated as such. Discrimination against them will appear unconstitutional as not being in conformity with section 34. I have reason to believe that no one subscribes to the view that the dates in section 34 are intended as public holidays.

The defendant raises yet another defence, in paragraph 14 of his defence that:

“the President of the Republic who was also the Chairman and leader of the 31st December revolution and the members of parliament of the NDC party to which the President belongs were elected on the party manifesto whose underpinning was continuity of the good works and values of the 31st December revolution.”

As to this manifesto and continuity theory, it may be enough to say that the courts are sworn by the Judicial Oath at all times to uphold, preserve, protect and defend the constitution and laws of the Republic of Ghana. They are not sworn to uphold and defend the manifesto, and theories of government, however lofty, of any political party or parties. Party manifestos do not fall within the definition of the constitution and laws of the Republic of Ghana. Significantly, the President, who may be leader of his party, as well as his Ministers, and all the NDC members of parliament referred to in the said paragraph 14, also swore to uphold, preserve, protect and defend the same constitution, not the party manifesto, with its underpinning of continuity, on the basis of which they contested the elections and gained access to parliament, or to their several positions and offices.

Interestingly, in the case of the President, he swore additionally:

“¼ that should I at any time break this oath of office I shall submit myself to the laws of the Republic of Ghana and suffer the penalty for it. (So help me God).”

It has been said that this additional undertaking constitutes a voluntary waiver of whatever immunities are conferred on the President by the constitution. The matter does not directly arise in these proceedings, and I express no opinion on it.

On the whole, I take the view that the plaintiff has made out a case against the observance of the anniversary of 31 December 1981 as a public holiday, to be celebrated as such and financed out of public funds. It is for the reasons stated above that I decided the case in favour of the plaintiff, and granted the declarations sought.

FRANCOIS JSC. By its writ the plaintiff, the New Patriotic Party, sought two declarations from this court. The first, a declaration that the public celebration of 31st December and the financing of such a celebration from public funds was contrary to the letter and spirit of the Constitution 1992. The second, a consequential order prohibiting the financing of such a celebration from public funds. The plaintiff relied on articles 3(3), (4), (5), (6), (7), 35(1) and 41(b) of the Constitution 1992. It has not been difficult to come to the conclusion that the public commemoration of an event that signified the violent overthrow of a constitutionally elected government, is against the letter and spirit of the Constitution 1992. I now proceed to state my reasons.

The Decision

As a necessary preamble, it is worth repeating that this court did not prohibit or debar anybody so minded, from celebrating the 31st December event, provided the celebration was not financed from public funds and no one was coerced into recognising the day as a public holiday. It is common knowledge that the non-observance of a public holiday attracts sanctions in this part of the world. See the Public Holidays Law 1989 (PNDCL 220), s 5 thereof. The removal of this liability, by erasing the public character and the public financing of any celebrations of that day, was the kernel of our decision of 29 December 1993.

Our constitution permits freedom of association. Implicit in this, is the unrestrained liberty to promote and enjoy popular social forums and gatherings provided such group activities did not violate any laws. So 31st December could be celebrated within the limits we placed on it. In short we only circumscribed the options for its celebration by detaching any national or public character from it, and prohibited any public expenditure on its account.

The constitution

We need constantly to remind ourselves that the constitution was born of a consensus, which was formally approved in a national referendum. The constitution consequently embodies and represents the people’s will. A sovereign people, accordingly, has ordained that the Supreme Court should be the appropriate arbiter in determining, among other things, all issues that border on a negation of constitutionalism. It has charged it with the duty of nullifying any act inconsistent with, or in contravention of the provisions of the constitution.

The power to strike down constitutional anachronisms or aberrations is not unusual in many democratic regimes. Thus, Chief Justice Marshall of the US once observed regarding the separation of powers that “it is emphatically the province and duty of the judicial department to say what the law is.” And Justice Barak of the Israeli Supreme Court, has added his voice: “any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government.”

The letter and spirit of the constitution

A constitutional document must be interpreted sui generis to allow the written word and the spirit that animate it, to exist in perfect harmony. It is interpreted according to principles suitable to its particular character and not necessarily according to the ordinary rules and presumptions of statutory interpretation. See Minister of Home Affairs v Fisher [1979] 3 All ER 21, PC. This allows for a broad and liberal interpretation to achieve enlightened objectives while it rejects hidebound restrictions that stifle and subvert its true vision. In the celebrated case of Tuffour v Attorney-General [1980] GLR 637 at 647 the court said:

“A written constitution such as ours is not an ordinary Act of parliament. It embodies the will of a people. It also mirrors their history. Account therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller life.

The constitution has its letter of the law. Equally, the constitution has its spirit. It is the fountainhead for the authority which each of the three arms of government possesses and exercises.”

My own contribution to the evaluation of a constitution is that a constitution is the out-pouring of the soul of the nation and its precious life-blood is its spirit. Accordingly, in interpreting the constitution, we fail in our duty if we ignore its spirit. Both the letter

and the spirit of the constitution are essential fulcra, which provide the leverage in the task of interpretation. In support of this, we may profitably turn to the constitution itself, which directs that we accord due recognition to the spirit that pervades its provisions. In article 17, clause 4(d), parliament is enjoined not to enact laws “inconsistent with the spirit of this constitution.” Pausing for a moment, it stands to reason that if parliament ignores this caveat, the Supreme Court has power to strike that legislation down. See articles 1(2) and 2. Again, in article 21(4) where restrictions are imposed in the interest of defence, public safety or public order by court process, the constitution nevertheless requires that what is “done under the authority of that law” does not offend “the spirit of this constitution.”

Another example of the all-pervasive and embracing spirit, to which there is a mandatory call to obeisance, is article 33(5). All are enjoined to go beyond the written provisions enshrining human rights, and to extend the concept to areas not specifically or directly mentioned but which are inherent in a democracy and intended to secure the freedom and dignity of man. This is a poignant injunction to examine deeply any written provision so that its interpretation extends in depth to embrace its underlying spirit and philosophy.

Constitutions differ. Some spell out in detail specific provisions to meet envisaged circumstances. Some are frugal with the written word allowing for innovation. But in every case a true cognition of the constitution can only proceed from the breadth of understanding of its spirit. Sometimes the draftsman’s felicity of language is seriously in question. But that notwithstanding and despite the fact that the tailoring may betray a clumsy or unskilled hand, if the spirit is breathed into the written word, the objectives of the fundamental law can be achieved. The necessary conclusion is that the written word and its underlying spirit are inseparable bed-follows in the true interpretation of a constitution.

If more persuasion were necessary, one would note what an American jurist, Justice Jackson once said about the unwritten word in a constitution. He said: “perhaps even more than by interpretation of its written word, this court has advanced the solidarity and prosperity of this nation by the meaning it has given to these great silences of the constitution.” Indeed it is the proper ascertainment of these silences that provide the measure of understanding of the basic constitutional concepts of the fundamental law.

Finally, on this aspect of the spirit of the constitution one cannot omit reference to the wisdom of Ecclesiastes 8 verse 8: “There is no man that hath power over the spirit to imprison the spirit.”

The people’s choice

By its sovereign will, the people of this country have chosen a multi-party system of government to regulate their affairs. The fact that they chose a new direction and a new system of governance is the clearest pointer to change. In charting a different course, the democratic path, the people of this country took a solemn step away from what was immediately prevailing. Viewed in this light, it is idle and illogical to hold that the old order has yielded place to nothing new especially when the new order is diametrically opposed to the old. Looking then at the letter and spirit of the constitution, we can hardly fail to conclude that the sum total of its provisions demonstrate unequivocally an estrangement from the old order, and betrays a consanguinity rather with past constitutional regimes than with what it immediately displaced.

This retracing of steps to the accustomed and familiar path, with willingness and determination to make a success of democracy this time round, is being severely tested in this matter. The will of the people, in the present context, if understood properly, is a solemn and incontrovertible declaration that however benevolent the resultant effect on the assault on constitutionalism, 31 December 1981 may be, it could not earn the distinction of constitutional propriety.

The Constitution 1992 is a severance from the immediate past which it attempts to bury by prohibiting the exhumation of any aspect of it that could recall bitter memories, resentment or revenge. The constitution with clarity of language that defies any attempt to obscure its purpose condemns unreservedly any attempt to overthrow a duly constituted government by unlawful means; see article 3. Any such attempt would bear not only the stain and reproach of unconstitutionalism but would purchase for its perpetrators the severest sanctions.

The Attorney-General argues that the constitution did not intend to look at unconstitutional acts with retrospective eyes. Regrettably, that argument misreads the constitution and misses completely the force of its spirit. For if the constitution frowns on violent overthrows of duly constituted governments, and rejects acts that put a premium on unconstitutionalism to the extent of even proscribing the promotion of a one party state, it is naiveté of the highest order, to expect that very constitution, and in the same breath to sing Hallelujah’s in a paean of praise to unconstitutional deviations, past or present. If the past is being duly buried, the spirit of the constitution would frown on the resurrection of any of its limbs. That is the whole point of the cloak of indemnity conferred in s 34 of the transitional provisions, which will be addressed later.

The quid pro quo, is an expected reformation that would not flaunt the past upon a forgiving people and subject them to a lifetime of trauma. In short, it is conceded that the constitution does not retroactively punish the actors in a coup d’etat, but at the same time it places an embargo on future coups and on a parity of reasoning, frowns on any reminders of it, especially its celebration.

The celebration

By definition, a celebration is a public observance, which honours an event. It is accompanied by festivities and a general atmosphere of exhilaration. It extols and praises the event it commemorates. If it is a public celebration, then obviously the entire public, except those in perpetual disgruntlement with life itself, would participate in the jolly making for example, Independence Day. But where with the advent of 31 December 1981, a sizeable section of a people recite a litany of ills and perpetually relive them, it cannot, with the best will in the world, be classified as an ideal scenario for a public celebration, nor can its baleful antecedents escape judicial notice. Logic and prudence would dictate the prohibition of such a public celebration as to do that would only promote division and fly in the teeth of the constitutional injunction to let bygones be bygones. It is insensitiveness of a very high order, which this court can countenance only with discomfort. Indeed, how can the objectives stated in articles 35(4) and (5) of the constitution be achieved in the heightened atmosphere of distrust and division.

Article 35(4) states:

“The State shall cultivate among all Ghanaians respect for fundamental human rights and freedoms and the dignity of the human person.”

And article 35(5) also states:

“The State shall actively promote the integration of the peoples of Ghana and prohibit discrimination and prejudice on the grounds of place of origin, circumstances of birth, ethnic origin, gender or religion, creed or other beliefs.”

Put bluntly, there will always be a substantial section of the people of this country and not a petulant few, who will never see joy in a 31st December celebration. It is for such as these, that the State is to take appropriate measures to achieve the happy result of fostering a spirit of loyalty to Ghana that overrides every other loyalty and promotes among the people of Ghana the culture of political tolerance; see articles 35(6) (a) and 35(9). It was most unfortunate, that counsel should consider it proper to test a political gambit by inviting us to saunter along an avenue which our jurisdiction does not permit us to; I refer to the argument that urges us to consider the historical merits of the 31st December insurrection.

To argue as counsel did that 31st December revolution is of historic importance because it ushered in a millennium of peace and stability, attracting in its train an economic renaissance unparalleled in the history of this country (if I correctly capture his drift), is completely to misapprehend the limits of our juridical function; which I repeat, is simply to juxtapose the 31st December event with the new order, on the constitutional divide, to pronounce it wanting or not wanting in the quality of its relationship with constitutionalism.

Equally irrelevant, for the same reasons, were the references made in this court to other revolutions elsewhere which attained a permanent status by being officially celebrated, and the attempt to persuade us to confer the same distinction on 31st December. It must be repeated, that the changed democratic direction of pluralism that the constitution ordains and the very limits which the constitution places on our juridical role, put effective fetters on our embarking on a discussion of the merits of 31st December. But one may comment that such arguments place a premium on coup d’etat. They seek an endorsement of revolutionary acts that topple governments before their time, and demand a blessing to recipes and prescriptions for the violent overthrow of constitutional regimes.

Article 3(3) prescribes that:

“Any person who

 (a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act: or

(b) aids and abets in any manner any person referred to in paragraph (a) of this clause -

commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.”

The Deputy Attorney-General urged two other matters that must be squarely answered. But first, it must be pointed out that any attempt to align this court’s exercise of its interpretative jurisdiction with foraging in politics, is as mischievous as it is unfortunate.

In existence in our statute books is a law designating 31st December as a public holiday, PNDCL 220. The Deputy Attorney-General, as an officer of the court, has affirmed that money was voted by parliament to celebrate the 31st December event. The simple issue that arises, as I have been at pains to point out, is whether in view of the new path the people of this country have chosen to tread and which is at odds with violent revolutionary changes of government, such a public celebration, is not a violation of the constitution and consequently self-condemnatory. The admission that a violent overthrow of government occurred on 31st December forecloses any sanctioning of its public celebration in a constitutional era.

Equally outside our purview was the argument that the 31st December revolution flowed into the constitution with “its good works and values” counsel’s language ipsissima verba. Here again, the dimensions of our duty of interpretation were missed. For whether the event was an auspicious ray of sunshine, or alternatively a dark cloud on the historical landscape, is clearly outside our bounds. To link our duty with a subversive quest to undermine s 34(2) of the transitional provisions, as was stated in paragraph 15 of the defence, is also unfortunate and mischievous. Perhaps we may again look with profit at Tuffour v Attorney-General, supra. There the court said: “No”.

“Neither the Chief Justice or any other person in authority can clothe himself with conduct which the constitution has not mandated ¼ The question whether an act is repugnant to the Constitution can only be determined by the Supreme Court.”

Before the insurrection of 31st December 1981, the people of this country, in the exercise of their inalienable rights, as enshrined in the constitution, voted into office a government of their choice. It was the expression of their sovereign will. The insurrection of 31st December however overthrew this legally constituted government. It was not by due process as provided in the constitution for the termination of a government, but by violent, unlawful means. It is now being advocated that the celebration of this illegality is still permissible or should be, in a constitutional era, and that this court should confer its constitutional blessing on the event.

I see a patent incongruity, a contradiction in terms in this competition for respectability and legitimacy, between the usurpers of power and the victims of a successful putsch. Constitutional evolution and illegal revolution are poles apart and like east is to west, “never the twain shall meet.” They certainly cannot jostle with each other in jocund camaraderie.

The issue must not be blurred into a moral, in contradistinction to a legal one. While this court cannot compromise its judgment by accepting arguments that emanate from the forum of conscience, beholden as we are only to the supremacy of the law, at the same time, we should decline to dismiss out of hand, issues of mixed law and conscience, merely because they are interwoven. It must be truly recognised that there are many grey areas, where constitutional imperatives cannot be divorced from the dictates of good conscience. This is not a mere intellectual engagement or as academicians will put it a dialectical disputation.

Some illustrations are called for. If the argument on the supremacy of the 31st December event is sound, it is curious there is no support for it in the constitution itself where we rather see, transparently beyond peradventure, an attempt to distance constitutionalism from violent overthrows of duly constituted governments. Again, if the achievement of 31st December should maintain a pride of place in the social fabric as urged, it is strange that, that event was not excepted from the general antipathy expressed in the constitution towards the heresy of revolutions, with the accompanying penalty of the forfeiture of life itself.

The other window offers a corresponding view. Ancient mythology and Christian theology both recognise a deus ex machina; that dreadful engine of vengeance that comes as a thunderbolt to impose draconian solutions on mortal mistakes. In the Christian world it is a corrective or chastening machinery to enforce the renunciation of evil ways, to obtain salvation. But no one in his proper sense would place such an event on a pedestal for worship and veneration. That would accord ill with the Lord’s own sense of justice. For it is not a day marked with rejoicing and festivities; rather it conjures the scenario of sackcloth and ashes. So 31st December receives the rebuff of conscience in its efforts at acclamation; yet the legal determination achieves the same results. For the shroud of indemnity in s 34 of the transitional provisions, completely mummifies the 31st December event and reduces it to an impotent, unmentionable event at law. It must remain so in its sarcophagus. That said it is not our province to indulge in a debate on extrinsic merits. For, we do not espouse a cause or denounce one. The historic perspective allowed us is only to place 31st December on the calendar, as a happening. We accordingly leave it to history and posterity, as better judges, to pronounce on the quality of that event, and give it its rightful place. For, it is history that accords its epic moments the distinction of an indestructible accolade.

One can hardly resist here a pertinent aside. The proper evaluation of any historical event requires a measured period of time for analysis, untrammeled by emotive or other considerations. Those breathing the current air are enveloped in its environment and are disabled by their proximity to the event in time and place, from making sound, objective and valued judgments. Fortunately and I repeat, it is not the province of this court to embark on an evaluative excursus. Ours is to relate that day, the 31st, with all its trappings, to the new political order ushered in by the Constitution 1992, and to declare whether the two could comfortably co-exist. And, if not, whether reminders of that event in public celebrations and at public expense could be permitted in our changed democratic circumstances.

A democratic commitment demands an unremitting effort at ascertaining the underlying spirit of the constitution and obeying it. Thus may we turn with profit to article 56. This article embodies the spirit, which compels the rejection of the servitude which arbitrariness imposes and which a slave mentality willy-nilly accepts. Article 56 states:

“Parliament shall have no power to enact a law to establish or authorise the establishment of a body or movement with the right or power to impose on the people of Ghana a common programme or a set of objectives of a religious or political nature.”

Enshrining the 31st December event as a public holiday, breaches article 56. Parliament cannot authorise expenditure from State coffers for the commemorative celebration of an illegal event, which many citizens may not approve. Inherent in article 56 is the impropriety to impose and ram down people’s throats unpopular programmes with set political objectives. Implicit also in this article, is the invitation to all constitutionally minded citizens of Ghana to fight the imposition or infliction of private programmes on the public and to resist their coercive enforcement through the machinery of the law.

The indemnity

An indemnity suggests exemption from penalties. It is the closing of a chapter, the commencement of a fresh start with the opening of a new page. Recriminations, enmity and rancour, which may be carried over from the past, are proscribed. In constitutional terms and with the relevance of our own circumstances, an indemnity connotes a perception of a bright future with all past errors consigned to the archives of history. There is a tacit implication that it may not augur well for the country, if it were to be perpetually embroiled with the rights and wrongs of the past and the vengeful pursuit of the pound of flesh. With that setting, it is clearly unjust to exacerbate old wounds by permitting echoes of the past to reverberate and shatter the tranquility the constitution sought to promote with its reconciliatory arrangements.

An event that has earned its architects an indemnity under s 34 of the transitional provisions must as observed before be consigned to the grave with the solemn quietus intoned by the said section. The constitution reminds us that three such events in the past are to be buried with the indemnity of a pardon. Their ghosts should not linger around, like phantom wraiths dispensing mischief with reckless abandon. A crude analogy is tying up the hands of a boxer to allow an adversary to pummel him into submission, pronounce his defeat, and still allow the slaughter to continue.

Conclusion

I permit myself the indulgence to make some observations in conclusion. Even as it is axiomatic that one cannot boast of being a true Christian if one is not acquainted with the Good Book, so does ignorance of the constitution project unwillingness and an inability to defend it. How can the duty, which every citizen is required to discharge in defending the constitution under article 3(4) and 41(b) be accomplished if its provisions are unknown, and citizens remain ignoramuses of the fundamental law. The narrow division this case has caused is the clearest manifestation of judicial independence; that quality of freedom the constitution itself seeks to promote. This freedom is a necessary adjunct to the successful defence of the new social order and sustains the springboard for progress in our human development. The opposing views we express are not caustic reflections on contrary views. They are honest individual perceptions of controversial matters. As W O Douglas puts it is in his article, “The dissent: A safeguard of democracy,” 32 Journal of the American Judicature Association (1948) pp 104-7.

“¼ disagreement among judges is as true to the character of democracy as freedom of speech itself ¼The truth is that the law is the highest form of compromise between competing interests; ¼it is the product of attempted reconciliation between the many diverse groups in a society ¼When judges do not agree, it is a sign that they are dealing with problems on which society itself is divided. It is the democratic way to express dissident views. Judges are to be honoured rather than criticised for following that tradition, for proclaiming their articles of faith so that all may read.”

If our constitution is to play an effective part in forging a virile democracy, it would be unacceptable to dilute its force with the demolition of the structure of checks and balances that sustains it or negate its provisions on the altar of peace and stability. The court’s independence and integrity are themselves powerful instruments for peace and tranquility. It was the late Chief Justice, Smoira, of the Israeli Supreme Court, who said that in any competing tryst “between truth and stability, truth must prevail.”

I conclude with two quotations, which sum up this whole exercise of interpretation. The first is from Tuffuor v Attorney-General, supra:

“The ideals which the framers of the Constitution were at pains by the letter and spirit of this Constitution to establish ought to be respected and adhered to. They are justice and fairplay; abhorrence of arbitrariness and discrimination; victimisation and vindictiveness; the protection of the individual and his fundamental human rights within the walls of the Constitution. We believe it was in pursuance of these ideals that the framers of the Constitution, formulated their proposals¼.”

To Lord Tennyson is reserved the last word. His counsel is to “take occasion by the hand and make the bounds of freedom wider yet; broad based upon her people’s will.”

ABBAN JSC. On 21 December 1993, the original jurisdiction of this court was invoked by the plaintiff by a writ in which the plaintiff sought two reliefs. In the first relief, the plaintiff prayed that the public celebration, which was scheduled to take place on 31 December 1993, and the financing of the activities involved in that celebration from public funds should be declared unconstitutional; and the defendant should be ordered to refrain from carrying out the said celebration on 31 December 1993. It would be better to set out the full text of the reliefs, as amended. They read as follows:

“1 A declaration that the public celebration of the overthrow of the legally constituted government of Ghana on 31st day of December 1981, and the financing of such celebration from public funds is inconsistent with or in contravention of the letter and spirit of the Constitution 1992 and more particularly articles 3(3), (4), (5), (6) and (7), 35(1) and 41(b) thereof.

2 An order directing the government of Ghana to cancel all preparations for the celebration of the overthrow of the legally constituted government of Ghana on 31 December 1981 aforesaid and to refrain from carrying out any such celebration financed

from public funds.”

The success of the second relief depended on the success of the first relief. The plaintiff also set out in its statement of case the basis for seeking the above declarations. The pleadings filed by both parties are very important and they ought to be set out, where necessary, in extenso. In paragraphs 3, 4, 5, 6 and 7 of the plaintiff’s statement of case, the plaintiff clearly gave a summary of the provisions of articles 3(3), (4), (5), (6), (7), 35(1) and 41(b) of the Constitution 1992 which were referred to in the first relief. In due course the exact wording of these articles would be quoted and critically examined to find out whether any of those provisions expressly or by implication banned or prohibited the intended celebration. However, paragraphs 8, 9, 10 and 11 of the statement of case alleged and I quote:

“8 In a publication in the print and other media in Ghana on or about 14 December it was reported that the government of Ghana had decided to organise celebrations to mark the overthrow of the constitutionally and legitimately elected government of the Third Republic of Ghana by violent or other unlawful means on 31 December 1981, by a route march involving the security services and voluntary organizations, and a wreath-laying ceremony, at the Revolution Square and a musical carnival at Trade Fair Centre which is situate at La in Accra.

9 On or about Friday 17 December 1993 it was further announced in the media in Ghana that 31 December 1993 would be observed as a holiday in celebration of the violent and unlawful overthrow of the legally constituted government of Ghana on December 31, 1981 aforesaid.

10 The plaintiff will contend that such celebrations, route marches and musical carnivals cannot be held without financing and that such financing would necessarily have to come from public funds.

11 The plaintiff will contend that the financing of such celebrations from public funds offends against the very existence of the Constitution 1992, that it is an affront to democracy and democratic constitutional rule and is subversive of the whole of the Constitution 1992 and further that the financing of such celebrations from public funds is totally unconstitutional.”

The defendant denied paragraphs 8 and 9 of the plaintiff’s statement of case and averred that “the print and other media on or about 14 December 1993 reported a press release from the Information Services Department stating that “a number of activities have been planned throughout the country to mark the 12th Anniversary of December 31st revolution and the first anniversary of the Fourth Republic.”

The defendant, in paragraph 5 of the defence, also denied paragraph 9 of the plaintiff’s claim in the following terms:

“5 The defendant denies paragraph 9 of the statement of plaintiff’s case and would say that the Minister of the Interior issued a statement on 17 December 1993, which was announced by the media saying, inter alia, that “the Minister of Interior has announced that Saturday December 25 Christmas Day, Sunday December 26 Boxing Day and Friday December 31 Revolution Day are statutory holidays.”

Photocopies of the two press releases in question and referred to in the defence were annexed to the defence and marked “A” and “B”.  “A” reads:

“Ghanaian Times, Tuesday December 14 1994 No 11,349 - Anniversary Programmes. A number of activities have been planned throughout the country to mark the 12th anniversary of the December 31st revolution and the first anniversary of the fourth republic. A release issued by the Information Services Department in Accra said the highlight of activities marking the December 31st anniversary in Accra would be a route march to be followed by a wreath-laying ceremony at the Revolution Square. Taking part in the route march will be the security services and various voluntary organisations. There will be a musical carnival at the Trade Fair Centre in the afternoon. The release said on January 7, the first anniversary of the inauguration of the Fourth Republic, there would be a ceremonial parade of the security services and voluntary organisations at the Independence Square to be followed in the afternoon by a cultural display. The celebrations would be rounded off with non-denominational services on January 9 in all parts of the country. GNA”

The defendant’s annexure “B” was a release, this time from the Ministry of Interior published in the People’s Daily Graphic on Monday December 20, 1993, No 13393 and reads as follows:

“Holidays: The Ministry of Interior has announced that Saturday December 25, Christmas Day, Sunday December 26 Boxing Day and Friday December 31 Revolution Day are statutory holidays. A statement issued in Accra said Saturday January 1 is New Year’s Day and that Friday January 7 will be observed as the Fourth Republic Day. It said in accordance with section two of the Public Holidays Law, since Christmas, Boxing and New Year Holidays fall on non-working days, Monday December 27 Tuesday December 28 and Monday January 3 have been declared public holidays instead. GNA.”

As I said earlier on, the pleadings filed by the parties in this suit to me are very pertinent, because they offered great assistance, and they lucidly put forward the contentions of the parties, quite apart from the oral arguments, which were presented to the court. I would therefore quote also the defendant’s paragraphs 6, 7, 8, 9, 10, 12, 15 and 16.

“6 The defendant admits paragraph 10 of the statement of plaintiff’s case, and says that money was legally appropriated under the 1993 budget which is lawfully being used for the celebration of both the historical values that 31st December revolution stood for and the first anniversary of the fourth republic which was born out of the values of the 31st December revolution.

7 The defendant denies paragraph 11 of the statement of the plaintiff’s case and says that section 19 of the transitional provisions of the constitution validates the 1993 budget.

8 The defendant will contend that 31 December like all public holidays in Ghana is a public holiday under section 1 of the Public Holidays Law 1989 (PNDCL 220).

9 The defendant will contend further that articles 3, 35(1) and 41(b) do not support the contention that the celebration of 31st December as a public holiday is unconstitutional.

10 The defendant will further say that the 31st December revolution of 1981 and the regime it gave birth to are events, which the constitution does not intend retrospectively to declare unconstitutional.

12 The defendant says that whether or not public funds should be appropriated for the celebration of 31st December revolution is a political question which is best left to the electorate which votes a government into power and a parliament which can by law decide what the public holidays of Ghana shall be.

15 The defendant maintains that what the plaintiff is seeking to do is to question the constitutionality and legality of the 31st December revolution, and events which gave rise to that revolution on 31 December 1981 which should not be entertained by the court by virtue of section 34(2) of the transitional provisions scheduled to the constitution.

16 The defendant says in the premises that the plaintiff is not entitled to the reliefs sought or at all.”

That was the state of pleadings and upon those pleadings oral arguments were addressed to the court.

What were the triable issues?

From the pleadings the triable issues in this case were firstly, whether the public celebration due to take place on 31 December 1993 in commemoration of the revolution of 31 December 1981 was unconstitutional. Secondly, whether public funds being expended in preparation of that celebration were also unconstitutional. Thirdly if the intended celebration on 31 December 1993 and the expenditure of public funds in respect of the said celebration were found to be unconstitutional, whether this court should make an order stopping the defendant from carrying out the celebration on 31 December 1993 and from making the said preparatory expenses from public funds.

It was on the consideration of the pleadings filed in the case and also on the oral arguments presented in support of the pleadings that this court on 29 December 1993, by a majority of 5 to 4, gave judgment in favour of the plaintiff and reserved its reasons. The split decision was short and as follows:

“By a majority of five to four (Archer CJ, Abban, Bamford-Addo and Ampiah, JJSC dissenting) the declarations sought by the plaintiff, as amended, are hereby granted. It is hereby ordered that 31st December shall no longer be declared and observed as a public holiday and celebrated as such out of public funds. The defendant is hereby ordered to obey and carry out this order. Reasons for this decision will be given on a date to be notified. (Emphasis mine.)

I had to keep my distance from this kind of judgment and to dissent from it on what in my view are very serious legal grounds. Before I deal with the merits of the case I will like to make two very important observations, bearing in mind that the present case will definitely not be the last case in which an interpretation of provisions of the constitution would be sought. The likelihood of more of such cases coming before this court cannot be ruled out. Hence, I feel duty bound to make the following observation.

It seemed to me that too much emotion and sentiment were generated in this matter during the hearing. These unfortunately could easily have had undue and profound impact on the continuing national respect for the court’s wise exercise of self-restraint in constitutional adjudication. Truly judges are human and so the possibility of a judge having his own private or personal views on the subject matter before the court, like the present one, cannot be over-emphasized. But it is very important that all parties concerned should do everything possible to assist the judges so that they do not allow sentiments and their personal views to influence or to cloud their vision of objectivity when engaged in construing the provisions of the constitution.

This court, in exercising the powers conferred upon it by the constitution, should be impervious to extraneous influences and should be able to bring to bear on the problem before it, a professional objectivity that transcends personal predilections. Thus, parties involved in a case, like the present one, have a duty to assist the court in achieving that objective.

The second very important observation is about the case itself. It is significant to note that the plaintiff did not seek a declaration that 31st December, which had been made a public holiday in the schedule to the Public Holidays Law 1989 (PNDCL 220), was unconstitutional and that this court should declare also that 31st December should no longer be a public holiday on the ground that it was inconsistent with the spirit and the letter of the Constitution 1992. To put it in another way, the plaintiff did not give any intimation either by its writ or by its statement of case or by any means to the court or to the defendant that in addition to the amended two reliefs specifically stated in the writ, the plaintiff would also ask the court to declare that henceforth 31st December should no longer be a public holiday because it was inconsistent with the Constitution 1992, and must therefore be deleted from the list of public holidays which had been spelt out in the schedule to the Public Holidays Law 1989 (PNDCL 220).

Thus, the constitutionality of any section of PNDCL 220 was never a triable issue in the case. In other words, the plaintiff never sought in its reliefs a declaration that PNDCL 220, which is still on the statute books as provided by article 11(4) of the 1992 Constitution is inconsistent with the provisions of the constitution. Neither did the plaintiff in its pleadings call upon this court, by virtue of article 11(6) of the constitution, to construe PNDCL 220 with modifications, adaptations, qualifications and exceptions necessary to bring it “into conformity with the provisions of the constitution.” Again, there was no request in the reliefs that this court should also declare any section of the Appropriation Law 1993 (PNDCL 314) unconstitutional.

It would be recalled that it was the defendant, who in his statement of case, alluded to the Public Holidays Law 1989 (PNDCL 220) and contended that 31st December had been made a public holiday under that Law; and that the intended celebration due to take place on 31 December 1993 was in accordance with statute. In the course of replying to the oral submissions of learned counsel for the defendant, learned counsel for the plaintiff conceded that the Public Holidays Law 1989 (PNDCL 220) specified 31st December as one of the public holidays. But learned counsel for the plaintiff submitted that the continued operation of PNDCL 220 was inconsistent with the spirit of the constitution inasmuch as 31st December continued to be observed as a public holiday.

One would have thought that at that stage, the plaintiff would have put in a reply or would have, at least, sought leave from the court, even orally, to amend its writ under rule 49 of the Supreme Court Rules 1970 (CI 13) by adding another relief, namely that a section of PNDCL 220 and the Appropriation Law 1993 (PNDCL 314) both of which are part of the existing laws of Ghana are inconsistent with the spirit of the constitution and are therefore unconstitutional. But no amendment was sought or made either to the writ or to the statement of the plaintiff’s case.

So the case proceeded on those two reliefs in the plaintiff’s writ and was fought on the issues, which I set out earlier on in this judgment. Yet the majority decision unhesitatingly declared that the Public Holidays Law 1989 (PNDCL 220) so far as 31st December was concerned was unconstitutional and that henceforth 31st December should no longer be observed as a public holiday, when that relief had not been asked for by the plaintiff in its writ or in its pleadings and when that had never been a triable issue in the case. In other words, the majority decision gave the plaintiff a declaration, which the plaintiff itself did not seek and which, as I have already stated, had never been a triable issue in the matter.

It is trite learning that the object of pleadings is to compel the parties to define the issues upon which the case is to be contested, and to prevent one party taking the other by surprise. The question whether a court could legitimately decide on a question not specifically raised by the pleadings merely because there had been evidence of it before the court was discussed at great length by English House of Lords in the case of Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 HL. At page 238 of the Report Lord Normand had this to say:

“There was no notice in the pleadings of any other cause of action, such as that the appellants negligently sent the vessel to sea in an unseaworthy condition. The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them¼I wish to associate myself with the observations of my noble and learned friend Lord Radcliffe, on the value of pleadings. To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.”

Lord Morton at page 239, agreeing with Lord Normand said:

“This submission leads me at once to consideration of the pleadings, in order to see exactly what were the issues raised thereby ¼My Lords I have set out the pleadings in detail in order to show that no complaint was made of any act or default on the part of the appellants, either in the original statement of claim or at the time when the respondents had the opportunity of amending it with full knowledge of the facts already mentioned¼Counsel for the respondents then sought to make a case of which no hint appeared in the pleadings.”

Similar views were expressed at page 241 by Lord Radcliffe where he said:

“My Lords I think that this case ought to be decided in accordance with the pleadings. If it is, I am of opinion ¼that the respondents failed to establish any claim to relief that was valid in law ¼In my view where the question is, as here, as to sufficiency of evidence, the state of pleadings is of more importance than the way in which the case is shaped in argument. It is clear that no application was made to the trial judge to amend the pleadings.” (Emphasis mine..)

In CFAO v Archibold [1964] GLR 718, Esso’s case was referred to with approval by the Supreme Court. Adumua-Bossman JSC read the unanimous judgment of the court thus:

“When a reply is not filed to an averment in the statement of defence, the trial court is not entitled to consider a matter raised in the final address for the first time. The respondent’s submission in his final address that the action was not statute-barred should have been presented in the form of a reply to the statement of defence and it was not competent for the trial court to have considered the matter at all.” (Emphasis mine.)

The matter was also discussed in Malm v Lutterodt [1963] 1 GLR 1, SC. Azu Crabbe JSC reading the unanimous decision of the court at page 12 said:

“The only problem that arises therefore in this appeal is whether there is evidence to support this finding of the learned trial judge that the plot was abandoned.”

Then at pages 14 - 15, the learned judge continued:

“To my mind to raise an issue of abandonment is to allege estoppel by conduct which was not pleaded by the plaintiff and in support of which he led no evidence whatsoever: see Young v Star Omnibus Co Ltd (1902) 86 LT at 43 per Farewell J.

In my view, therefore, the learned trial judge erred in basing his judgment on a point which was not a triable issue on the pleadings: Oloto v Williams (1944) 10 WACA 23. I venture to say, with all respect, that the pronouncement on abandonment is of no effect because the court went beyond the rights which were really in issue between the parties. In Robinson v Duleep Singh (1879) 11 Ch D 798 at 813, James, LJ said, ‘¼if the court had gone beyond the rights which were properly in issue between the parties the decree of the court would be absolutely null and void’.” (Emphasis mine.)

In the present case, as I have already stated somewhere in this judgment, the constitutionality of PNDCL 220 or any section of that Law, or any of the public holidays as listed in its schedule, was never in issue in this action. Thus in the light of the authorities and having regard to the reliefs in the writ and the statement of the plaintiff’s case that portion of the judgment of my five brethren which went to the extent of pronouncing on PNDCL 220 by declaring that “31st December should no longer be a public holiday,” with the greatest respect, was irregular. That portion of the judgment went “beyond the rights which were properly in issue between the parties.” I have to make it clear that it was an irregularity which came about as a result of the court doing something which had no warrant in law or in the rules of procedure. Consequently that portion of the judgment just referred to is null and void and has no legal validity whatsoever.

In the classic case of Mosi v Bagyina [1963] 1 GLR 337 SC, Akufo-Addo JSC in the course of reading the unanimous judgment of the Supreme Court said at page 346 this kind of irregularity, as in the present case renders void an order or judgment emanating therefrom and setting aside such an order or judgment being ex debito justitiae a court or a judge has no discretion in the matter but is under a legal obligation to set it aside. In the case of MacFoy v United Africa Company Ltd [1961] 3 All ER 1169 PC, which was approved in the Mosi case, Lord Denning at pages 1172 - 1173 of the report said:

“This is the same as saying that it was void and not merely voidable ¼[I]f an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado.”

I will now deal with the case on its merits. Learned counsel for the plaintiff, Mr Adjetey contended that the coup of 24 February 1966, which violently overthrew the 1960 Constitution and toppled the Nkrumah regime was illegal. So was the coup of 13 January 1972 which overthrew the Constitution 1969 and ousted the Busia regime from office; and that the revolution of 31 December 1981 that overthrew the Constitution 1979 and toppled the Limann regime was also illegal. Learned counsel intimated that he was not very much concerned with the palace coup of 5 July 1978 and the uprising of 4 June 1979, for those coups were directed against military regimes which had illegally installed themselves in power. But learned counsel for the plaintiff contended that the indemnity, as provided in the transitional provisions, should not prevent this court from holding that all those three coups were illegal and therefore unconstitutional.

Learned counsel for the defendant, the Deputy Attorney-General, Mr Amidu, on the other hand, submitted that the various coups mentioned in the submissions of learned counsel for the plaintiff had been prohibited by the provisions of the indemnity in section 34(1) and (2) of the transitional provisions from being made subject of any law suit; and so the court by the said section was not entitled to make any pronouncement on these coups. I thought that was an indirect invitation to this court by counsel for the plaintiff to pronounce on the illegality of those coups and also on the illegitimacy of section 34 of the transitional provisions of the Constitution 1992.

Incidentally, indemnity clauses are not peculiar to the Constitution 1992. They are found in all constitutions promulgated since 1969. They were first introduced in the Constitution 1969 by section 12(3) of its transitional provisions. In the Constitution 1969 the indemnity clauses, apart from indemnifying the coup leaders and members of the NLC, went further in section 14(3) of the transitional provisions to give mandate to the civilian government, the Busia government, that “on or soon after the coming into force” of the Constitution 1969, the leaders of 1966 coup should be paid gratuity “as a token of the nation’s gratitude” or appreciation for over-throwing the Nkrumah government by force of arms. In addition to this, section 14(4) of the Constitution 1969 transitional provisions, provided that they should be paid retiring benefits or awards which parliament had no power, according to section 14(5), to alter or interfere with “until the death of all members of National Liberation Council.”

It can therefore be seen that the Constitution 1969 did not only exonerate the coup leaders from blame in staging the coup, but they were also rewarded handsomely for violently overthrowing the Nkrumah regime. Thus, as already stated, the provisions as found in section 34 of the transitional provisions of the Constitution 1992 are not new phenomena.

In any case, in view of the injunction placed on the court by section 34(2) of the transitional provisions of the Constitution 1992, I did not think this court was entitled to consider the legality or illegality of those various coups mentioned by learned counsel for the plaintiff, apart from stating simply that those coups overthrew governments which were then in power. I rather prefer to adopt the attitude of Archer JA in Sallah v Attorney-General (1970) 2 G & G 493, SC. In the course of his judgment the learned judge had this to say:

“Although this transitional provision in effect clearly forbids the generation of future controversy by legal proceedings or judicial pronouncement, over the constitutionality or unconstitutionality, legality or illegality of the Proclamation and the events that ensued, yet the defendant who is the learned Attorney-General, has generated arguments pregnant with questions which no doubt would drive us into considering the legal validity of the Proclamation itself. The learned Attorney-General has put temptations in the path of the court and I think these temptations should be ruthlessly and mercilessly resisted. For my part, I would say that section 13(3) of the transitional provisions has clapped the hand of the reticence over my lips and I refuse to open my lips on the legal validity of the Proclamation itself.” (Emphasis mine.)

Learned counsel for the plaintiff next contended that the intended celebration of the 31st December revolution on 31 December 1993 was contrary to the provisions of article 3(3), (4), (5), (6), (7) and articles 35(1), (2) and 41(b) of the Constitution 1992. He argued that to celebrate a day on which a lawfully constituted government was illegally ousted from power would send wrong signals to the security services, armed forces and even to school children and to Ghanaians as a whole, that the highest achievement anybody could attain was to overthrow an established government by violence. It was further submitted by learned counsel for the plaintiff that the celebration of the 31st December revolution on 31 December 1993, would remind Ghanaians of atrocities, maiming, humiliating and other de-humanizing acts suffered by or meted out to many Ghanaians on 31 December 1981; and to that end, the celebration was inconsistent with the spirit and the letter of the Constitution 1992.

Learned counsel for the defendant, on the contrary argued that the celebration was constitutional and that all the articles referred to by counsel for the plaintiff did not proscribe the celebration, which was to take place on 31 December 1993. Learned counsel for the defendant contended that it was a celebration of a historical event, which took place in this country. Learned counsel argued that one could compare it with the French revolution of 14 July 1789 and that the French people do not consider the celebration of 14 July unconstitutional. The object of celebrating 31st December, contended learned counsel for the defendant, was not to abrogate or overthrow the Constitution 1992 as envisaged under article 3(3), (4), (5), (6) and (7).

It was also submitted by learned counsel for the defendant that the mere fact that the celebration or an act could remind people of what happened on a coup day could not make the celebration or that act unconstitutional. Learned counsel for the defendant further submitted that observing 31st December was to celebrate, not the actions of that day, but the historical values, inherited under the Constitution 1992. Learned counsel contended that the people of Ghana elected a parliament and have an executive and these bodies had got the mandate from the people to take decision as to which days in the year are to be public holidays and to celebrate them as such. Learned counsel for the defendant therefore submitted that the decision to celebrate 31st December in the manner as advertised in the local papers was a political decision and the court had not been empowered by the constitution to interfere with purely political decisions taken by the defendant.

For the importance of this case, I will quote the articles relied upon by learned counsel for the plaintiff verbatim. Article 3 is as follows:

“(3) Any person who -

 (a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or

 (b) aids and abets in any manner any person referred to in paragraph (a) of this clause

commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.

(4) All citizens of Ghana shall have the right and duty at all times -

(a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and

 (b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article.

(5) Any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of this Constitution as referred to in clause (3) of this article, commits no offence.

(6) Where a person referred to in clause (5) of this article is punished for any act done under that clause, the punishment shall, on the restoration of this Constitution, be taken to be void from the time it was imposed and he shall, from that time, be taken to be absolved from all liabilities arising out of the punishment.

(7) The Supreme Court shall, on application by or on behalf of a person who has suffered any punishment or loss to which clause (6) of this article relates, award him adequate compensation, which shall be charged on the Consolidated Fund, in respect of any suffering or loss incurred as a result of the punishment.

 35(1) Ghana shall be a democratic state dedicated to the realization of freedom and justice; and accordingly, sovereignty resides in the people of Ghana from whom Government derives all its powers and authority through this Constitution.

41 The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen-

(b) to uphold and defend this Constitution and the law.”

Articles 35(1) and 41(b) of the constitution, which form part of the directive principles of state policy, have nothing to do with celebrations. In this action, no one disputed that Ghana is dedicated to the realisation of freedom and justice, and that the sovereignty resides in the people. Neither did any one dispute the right of every citizen to defend the Constitution 1992 and the law.

Thus, the provisions of articles 35(1) and 41(b) of the constitution had no relevance, whatsoever, to the subject matter before the court. Reference to those articles, with due respect, was totally misconceived. The words of article 3(3), (4), (5), (6) and (7) of the Constitution 1992 do not pose any problem. They are clear and straightforward. Thus, the proper course to follow in the interpretation of these clauses is to take the words themselves and arrive at their meaning. In other words, the language of the clauses of article 3 of the Constitution 1992 is clear and unequivocal, and must therefore be given the literal meaning; and to do so would not, in my view, lead to any manifest ambiguity.

If the provisions of the clauses of the articles of a constitution are clearly expressed, as in this case, and there is nothing to enable the court to put upon them a construction different from that which the words import, then the words must prevail. In the Sussex Peerage Case (1884) 11 C1&F 85 at page 143, Tindal CJ observed:

“The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such cases, best declare the intention of the lawgiver.” (Emphasis mine.)

See also the dictum of Park B, in Becke v Smith (1836) 2 M&W 191 at page 195 and Capper v Baldwin [1965] 2 QB 53 per Lord Parker CJ at page 61.

The words of article 3 of the constitution refer to acts, which are geared towards unlawful and violent overthrow of the Constitution 1992. All those clauses of article 3 have one common theme. That theme is like a thread which runs through all of them; namely, any person or persons either by themselves, or in conspiracy with others, who engage in any activities, overtly or covertly, with the object of overthrowing the Constitution 1992 unlawfully or violently, commit high treason, which is a very serious criminal offence. Such persons, and whoever aids and abets them, would be liable to criminal prosecution and upon conviction would suffer the death penalty.

Clauses (4), (5), (6) and (7) of article 3 place an obligation, on every citizen of this country, to take any step to prevent any person or persons from using any unlawful or violent means to overthrow, repeal, cancel or suspend the Constitution 1992. Also, persons who prevent or offer opposition to or suppress such conduct would be exonerated from any offence. In case these good citizens failed in their attempt to resist such conduct and they suffered any punishment thereby, such punishment would be considered null, void, and of no legal consequence from the date of such punishments, if eventually the Constitution 1992 was restored.

In addition, such good citizens would be entitled to adequate compensation for any punishment or loss, they might have suffered. The assessment of the quantum of the said compensation would be made by this court on an application made to it by the persons concerned, or on their behalf and paid out of the Consolidated Fund.

It could therefore be seen that the sole intention of the framers of the constitution, as portrayed in the said article 3, is to dish out the death penalty for those who indulge in subversive activities which have the only object of overthrowing or suspending or abrogating the Constitution 1992 or any part thereof, unlawfully or with violence, and reward those who might suffer in the course of opposing such violent overthrow. Such clarity of intention must militate, uncompromisingly, against any suggestion that the celebration of the kind as was contemplated by the defendant on 31 December 1993, would infringe any of the clauses of article 3 of the Constitution 1992. The intention of those who framed the constitution must not be collected from a vacuum or from any notions which may be entertained by this court as to what is just and expedient. The intention must be collected from the provisions of the articles relied upon; and once the intention is ascertained, it is the duty of this court to give effect to that intention.

The intention of those clauses of article 3 is not to prohibit the celebration of 31st December as a public holiday, and as a day for merry-making. The activities, involved in the celebration which was to take place on 31 December 1993, must guide this court to find out whether the said celebration had the potential of overthrowing the Constitution 1992 unlawfully, or to bring down the government of the day unlawfully or by violence as envisaged by those clauses of article 3 relied upon by the plaintiff.

The celebration involved going on a route march which was a kind of procession which is guaranteed by article 21(1)(d) of the Constitution 1992. It also had the object of remembering the dead, of merry-making generally, dancing and enjoyment of musical shows; and it was to be rounded off with a non-denominational church service. These activities could not, by any stretch of imagination, amount to “violent” and “unlawful means” intended to “overthrow” or “abrogate” or “suspend” the Constitution 1992 or “any part of it.” It was to be a peaceful celebration. It was not aimed at attacking violently government institutions, or to cause riots and disorder so that law and order would break down in the process and make it impossible for the elected government under the Constitution 1992 to govern and thereby oust it from office by “unlawful means” instead of through the ballot box.

Quite apart from the articles relied upon by the plaintiff, I have carefully and critically examined the provisions of the Constitution 1992 from article 1 to article 299, and from section 1 to section 37 of the transitional provisions; and I could not find even a single provision which expressly or by necessary implication proscribed the celebration which was to take place on 31 December 1993. It is interesting to observe that similar provisions as article 3 of the Constitution 1969 were made in article 3 of the Constitution 1992. Indeed, article 3 of the Constitution 1979 also made almost identical provisions as in article 3 of the Constitution 1969. So the provisions, which have been made in article 3 of the Constitution 1992, are not new or peculiar to the Constitution 1992. These provisions existed in substance in both the 1969 and the 1979 constitutions. That is, they existed during the Busia regime and also during the Limann regime. Yet those civilian governments observed coup days as public holidays and expended public funds to celebrate the anniversary of those coup days. For example, Busia government celebrated 24 February in 1970 as a public holiday dubbed “Revolution Day” to commemorate the violent overthrow of the Nkrumah regime. But to me, those celebrations were not in contravention of article 3 of the Constitution 1969. Neither did the celebrations contravene any other articles of the Constitution 1969.

Busia government had an Attorney-General who would have advised that government against the celebration of the anniversary of the coup of 24 February 1966, as a public holiday and as a revolution day, if that celebration contravened article 3 of the Constitution 1969. As a matter of fact, the Busia government would never have indulged in any celebration, which was inconsistent with the spirit and the letter of the Constitution 1969. I will deal with this aspect of the matter in detail, at a later stage.

However, I considered the criticisms levelled against the celebration of 31st December revolution (and the same criticisms could be levelled against the celebration of 24 February as a “revolution day” by the civilian government of Busia) as part of a healthy intellectual exercise of democratic rights, and must therefore be encouraged by all lovers of democracy. But that apart, they did not in any way affect the constitutionality of those celebrations.

I now come to the argument of learned counsel for the plaintiff that the celebration was inconsistent with the spirit and the letter of the constitution, since it would send wrong signals and would remind Ghanaians of the atrocities, maiming, humiliating and other de-humanizing acts suffered by Ghanaians on 31 December 1981.

A constitution is a living piece of legislation and its provisions are vital living principles; and the sprit of every constitution must be collected from the constitution itself. So is it the spirit of the Constitution 1992 that any celebration, and for that matter, anything which reminds or has the tendency to remind Ghanaians of a coup d’etat, or of violent overthrow of a lawfully constituted government is unconstitutional? The answer to me is no.

The Constitution 1992 itself has made Decrees passed by the National Liberation Council (NLC), National Redemption Council (NRC), Supreme Military Council (SMC I, SMC II), Armed Forces Revolutionary Council (AFRC) and Laws made by Provisional National Defence Council (PNDC) part of the existing law of Ghana. No legislation is passed without referring to the source, which is the foundation upon which it bases or derives its authority to make that law; and it is that source which gives validity to that law. It is for this reason that Decrees of the NLC, NRC, SMC, AFRC and PNDC Laws all contained Proclamations which revealed the sources of authority of those Decrees and Laws. Thus Proclamations of 24 February 1966, 13 January 1972 and 31 December 1981 revealed that on those days the governments in authority were ousted from power. For example the Provisional National Defence Council (Establishment) Proclamation 1981 clearly brings out this fact. It read as follows:

“…AND WHEREAS, on Thursday the 31st day of December, 1981 it thus became necessary for the Provisional National Defence Council to assume the reins of Government of the Republic of Ghana in the interest of the sovereign people of Ghana…

NOW THEREFORE; by virtue of the said assumption of Government of Ghana this Proclamation is made with effect from 31st day of December, 1981.”

These Decrees and Laws are referred to day in and day out in our courts and at any time such Decrees and Laws (each of which refers to a Proclamation and the date of the coup d’etat) are cited, they always remind us of those violent deposition of these governments. If therefore it was the intention of the framers of the Constitution 1992 that celebrations and things which remind the people of Ghana of coups should be regarded as being inconsistent with the spirit and the letter of the constitution, these Decrees and Laws would have been excluded entirely from the Constitution 1992 by its framers, but they did not consider them as being against the spirit and the letter of the constitution. How come that a day’s celebration and a public holiday which also remind Ghanaians of a coup (in the same way as the Decrees and Laws do) should be regarded as being against the spirit and the letter of the constitution, and therefore unconstitutional?

This is tantamount to over-stretching the doctrine of the spirit of the constitution to unreasonable limits and absurdity. For if this contention that celebrations or acts and conduct which remind Ghanaians of humiliations and atrocities meted out to them during coups are all inconsistent with the spirit and the letter of the Constitution 1992 is accepted, then it is likely to create ripples which may in the long run generate unforeseen confusion. If that kind of construction is correct then, for example, the act of naming the nation’s airport after one of the architects of the coup of 24 February 1966 which toppled the Nkrumah regime, and the act of raising a monument with public funds to the memory of that coup leader, edifices which are conspicuously and constantly reminding Ghanaians of the violent overthrow of the Nkrumah regime, could also be regarded as inconsistent with the spirit and the letter of the constitution. For these things could “send wrong signals,” if I may again borrow the expression of learned counsel for the plaintiff.

It was also argued that the French revolution should not be compared with what took place in Ghana on 31 December 1981; and the yardstick of that revolution should not be used to measure the happenings in Ghana. I found it rather difficult to accept that argument. For example, precedents of the courts in other countries are cited in our courts to show how similar situations in another country were dealt with. Even though they are only persuasive, they guide us when dealing with similar cases.

Thus the courts in Ghana do not refuse to look at decisions handed down by superior courts in other parts of the world. It is in this vein that it would not be wise for a country, like Ghana, not to take account of what takes place in other countries; for we cannot escape from the repercussions of such events. For any country, temporary isolation from a series of large international events is possible. But insulation from the consequences is not possible.

The French revolution could not therefore be dismissed as irrelevant and as not being worthy of comparison with the revolution of 31 December 1981. The underlying principle involved in the French revolution of 14 July 1789 and the uprising of 31 December 1981 is the same. For both of them involved the overthrow of governments in power by force of arms; and those who took part in them felt that those governments had betrayed the confidence which the people had reposed in them.

The French revolution started with the destruction of Bastille by an armed mob of Parisians on 14 July 1789. The Bastille had come to be used as a state prison for holding persons who were believed to be dangerous to the State, even though they had not been convicted of any crime. So “the gloomy old fortress had become a symbol of tyranny of the French Kings” and its fall was thought of as a great victory for liberty.

So it was an uprising of the common men against a tyrannical monarchy; and the King, the Queen and hundreds of nobles and many innocent people were “guillotined” and the people rallied around the motto “Liberty, Equality, Fraternity;” see Britannica Junior Encyclopaedia Volume 3 pages 101 - 102 and Volume 6 pages 213 - 214. Despite the slaughter of the King, the Queen and many innocent people, the French people do not consider the celebration on 14 July as unconstitutional. The French government spends public funds to celebrate this historic event even though the celebration reminds them of the atrocities, the killings and murder of some innocent people during the revolution which started on 14 July 1789.

It must be pointed out that learned counsel for the defendant referred to the French revolution, as I understand him, in order to bring home the point that 14 July is celebrated by the French people, people from a western country that is committed to democracy and also have a written constitution. They celebrate the day as their national day and as a public holiday with pomp and pride; and they do not consider the celebration of 14 July unconstitutional even though that day, as I have stated, reminds them of the atrocities that took place on 14 July 1789. The mere fact that a celebration reminds people of a violent overthrow of a government and its aftermath does not in itself make that celebration unconstitutional. The celebration of the 31st December revolution was intended to mark a historic event, which occurred in Ghana on 31 December 1981. The celebration was lawful. A lawful act or conduct does not become unlawful or unconstitutional simply because it is not liked or fancied by the plaintiff.

It is possible to interpret the majority judgment to mean that the celebration of 31st December revolution, which was to take place on 31 December 1993, was unconstitutional because it was being organised as a public affair with public funds and the day was to be made a public holiday. But it would not have been unconstitutional if it was to be celebrated as a private affair financed from private resources and the day had also not been declared a public holiday. May I therefore ask, does it mean then, that a celebration which is unconstitutional, because it reminds people of certain atrocities, would cease to be unconstitutional once the celebration is organised as a private affair and the day of the celebration is not made a public holiday? Would such a celebration organised as a private affair still not have reminded the people of the happenings of the coup day, and of de-humanising of people all the same?

I should also remark that some of the matters raised in the statement of case and were denied by the defendant in his statement of case, and indeed, matters raised in the oral arguments of learned counsel for the plaintiff required proof. A litigant who asserts that a conduct is unconstitutional, generally has the onus of showing that it is.

In this case, where the contentions had been that the people of this country did not want 31st December to be made a public holiday, because the day reminded them of atrocities that took place on 31 December 1981, it was incumbent on the plaintiff, to have produced evidence which could have formed the foundation of those contentions. This is especially so, as there is not a single provision in the constitution which states that 31st December should not be celebrated in the way as it was advertised. The court was not even furnished with evidence as to scientifically conducted opinion polls, as is done in other countries to show the percentage of those who liked and those who did not like the celebration. The views of the plaintiff about the celebration could not, with due respect, represent the views of the whole adult population of this country. Obtaining views from a negligible number of elite and few people around the cities and the urban areas, leaving out those in the rural areas who form the bulk of the population, could not provide the answer. This court was therefore eloquently pressed upon to accept a situation, which called for proof but which proof was lacking.

I will now deal with the Public Holidays Law 1989 (PNDCL 220). Public holidays have been the subject of diverse statutes. Indeed, many of the words used in the Public Holidays Law 1989 (PNDCL 220) seemed to have been borrowed from the language of previous enactments on the subject. I will therefore trace the ancestry of PNDCL 220 to find out exactly the attitude of previous governments as regards holidays and how they had viewed or treated them. I do so mindful of the principle, which was laid down by Lord Mansfield in Rex v Loxdale (1758) 1 Burr 447, namely:

“Where there are different statutes in pari materia, though made at different times, or even expired and not referring to one another, they shall be taken together and construed together as one system and as explanatory of each other.”

This principle is still sound and it was applied in the case of Smith v Brown (1871) LR 6 QB 729. It was also approved by the English Court of Appeal in Goldsmiths’ Company v Wyatt [1907] 1 KB 95, CA.

Starting with the Public Holidays Act 1960 (Act 23) which was assented to by President Nkrumah on 15 December 1960, it provided as follows:

“1(1) The days specified in the schedule are hereby declared to be holidays, and subject to the provisions of this Act shall in every year be kept and observed as public holidays throughout Ghana.

2(2) Any person who contravenes the provisions of subsection (1) of this section shall be guilty of an offence and shall, on summary conviction be liable to a fine not exceeding ten pounds.” (Emphasis mine.)

After the overthrow of the Nkrumah regime by the National Liberation Council on 24 February 1966, the schedule to Public Holidays Act 1960 (Act 23) was amended by the National Liberation Council by Public Holidays Instrument 1966 (LI 509) which, among other things, stated that:

“1 The schedule to the Public Holidays Act 1960 (Act 23) is hereby amended by the substitution for all the days specified therein of the following days,

New Years Day (1 January)

Liberation Day (24 February)

Independence Day (6 March)

Good Friday

Holy Saturday

The first Monday in August

Christmas Day (25 December)

Boxing Day (26 December).”

It is remarkable to note that during the era of the National Liberation Council, the latter decided to do away with 1 July as a public holiday, even though it was the day on which Ghana became a republic. The Busia government, by Public Holidays Instrument 1970 (LI 649) added 1 October as a public holiday - to be celebrated as Second Republic Day. The Busia government continued to exclude 1 July, Republic Day from the list of public holidays, but continued to celebrate 24 February as a public holiday under the heading “Liberation Day.” But as I stated earlier on, the Busia government actually celebrated it as a “Revolution Day.”

The Daily Graphic of Tuesday 24 February 1970 No 6033, carried the speech of Dr Busia on that celebration. I will however quote a few extracts from the Daily Graphic viewpoint that day:

“Salute to the gallant men.

Today is the fourth anniversary of the 24 February 1966 revolution. Exactly four years ago today a grateful and surprised Ghana woke up to see the end of tyranny and injustice.

As the oppressive CPP regime was uprooted, a firm foundation for freedom and fair play was laid in its place.

As Ghanaians celebrate the historic event today, there is no better monument we can erect in the memory of the fallen gallant men than to uphold, at all times, the aims of the revolution.

We must also pay a tribute to the living, the gallant NLC men, who ably did the spade work for the democratic rule we have now.

However we should accept the fact that freedom has its limits and that the elected government has a national duty to check its abuses.

Indeed Ghana’s record in the last four years has vindicated the revolutionary action the army and police took.

We can only hope that Ghanaians will guard jealously the golden opportunity which now prevails and resolve to ensure that the fifth anniversary of the coup will see us counting yet more achievements in an atmosphere of peace and unity.” (Emphasis mine.)

The same Daily Graphic, on Wednesday February 25, 1970, No 6034 had the following caption, “Ghana observes Anniversary of the revolution;” and under it the following article appeared.

“’It’s a good holiday. No accidents today’, a soldier made this remark at the Military Hospital, Accra, yesterday, when asked about reported cases of motor accidents.

The soldier’s remark really reflected the general atmosphere of the celebration of the fourth anniversary of the 24 February revolution.

A general calm and peace pervaded the capital, except that the scorching and bright sunshine was uncompromising. The capital was gaily decorated with flags and bunting.

Holidaymakers as usual flocked the beaches, the resorts, and bars. The Labadi Pleasure Beach the popular teenage and “Afro” recreational spot, was right in the centre of the attractions with its “24 February Special” featuring a variety of games swimming, dancing, dining and wining.

At the official level, the Presidential Commission played host to invited distinguished guests at a cocktail party at the Castle in the evening.

Similar receptions were held in the regions by Regional Chief Executives.” (Emphasis mine.)

May I observe that all the above-mentioned newspapers, like textbooks are available in public libraries in this country. The publications in them, like all newspapers, were made to the whole world and this court is entitled to take judicial notice of those publications.

However, after the overthrow of the Busia regime on 13 January 1972, the new regime, the National Redemption Council, by the Public Holidays Decree 1972 (NRCD 18) expunged 24 February from the schedule of holidays and substituted 13 January to be celebrated as National Redemption Day. But on 3 April 1974 the government of the National Redemption Council by the Public Holidays (Amendment) (No 2) Decree 1973 (NRCD 253) restored 1 July (the First Republic Day) as a public holiday. About ten months later in February 1973, by NRCD 154, the NRC government also restored 24 February as Liberation Day to be celebrated as a public holiday.

Then after about a year the NRC government on 20 February 1974 by the Public Holidays (Amendment) Decree 1974 (NRCD 244) deleted 24 February from the public holidays. The National Redemption Council government by NRCD 262 made further amendments by incorporating all the previous amendments it had made since it came to power. In the Public Holidays Decree 1974 (NRCD 262) by its section 5(1) the penalty for failing to observe a public holiday was changed to a fine not exceeding ¢1,000 or to imprisonment for a term not exceeding 6 months or both, if summarily convicted.

NRCD 262 remained in force from 1974 and throughout the period the Limann government was in power, until it was repealed in 1989 by the Public Holidays Law 1989 (PNDCL 220), that is about four years ago. PNDCL 220 has the same features as all those previous legislation on public holidays; only the schedules to the various legislation were amended. But the penalties exacted for not observing a public holiday remained during the regimes of Nkrumah, NLC, Busia and Limann. Only the fines were also amended from time to time. It could therefore be seen that PNDCL 220 is a successor to the various legislation on public holidays.

Furthermore it cannot be over-emphasised that Liberation Day, as 24 February 1966 was called, could really be a liberation day for some people in Ghana but certainly not for all the people in Ghana because while that day brought joy to some, it brought humiliation and sorrow to others, from which some may not have recovered to date. Judicial notice could be taken of the notorious fact that there was destruction of human life and property on that day, and 24 February 1966 could easily be said to be one of the bloodiest coups that this country has witnessed. Men in the security service were killed. Innocent civilians while going to work at the airport in the early hours of the morning were caught in the crossfire and killed in cold blood in front to the Flagstaff House. These were all notorious facts; and the aftermath of that coup was that a section of the population was banned from holding political and public office for ten years; see Elections and Public Offices Disqualification Decree 1969 (NLCD 332).

Indeed, one can re-capture the day of that coup, 24 February 1966, by referring to a passage in a book entitled: The Politics of Political Detention, written by Kwame Kesse-Adu. It was first published in 1971. At page 52 of that book, the author gave a vivid description of his feelings and what he found the situation to be, following the violent overthrow of the Nkrumah regime, in the following moving words:

“In the midst of a desert of hopelessness, suddenly we found an oasis of hope. This was 24 February 1966. There was a great deal of noise of cheering and of merry making from outside ¼The message flashed into cell No 3, my cell. The army had seized power. General Ankrah had assumed office. Afrifa and Kotoka were the heroes of the coup¼So we cheered. This was responded to from outside¼That night there was evidence. Kofi Baako, Kwaku Boateng and some Ministers came in. Kofi Baako was sent to Dr Danquah’s cell. Releases started that evening. More and more Cabinet Ministers and CPP high-ranking officers were brought in batches. The next day we saw them and I went to greet them my old friend Kofi Baako¼He smiled and waved. Then I saw my cousin Aaron Ofori Atta. I saw Krobo Edusei and most of the Ministers¼We left Ussher Fort by exchanging our cells with members of the CPP government¼I did not know whether to weep or to laugh.”

So 24 February 1966, as I said, was a day of joy for those who gained their freedom; and it was a day of sorrow for the relatives of those who were killed in cold blood and their properties destroyed, and also for those who were arrested that day and incarcerated in Ussher Fort and in other prisons in the country, when they had not been tried and convicted. Even though, according to the passage quoted above, one of those persons “smiled and waved” when he entered Ussher Fort, it should be remembered that there are men who could smile bravely before the world in the face of deepest personal sorrow. So while others gained their liberty, others lost it and, to use again the expression of learned counsel for the plaintiff, they were “dehumanised and humiliated”; and some even later lost their right to take part in the politics of their country for 10 years.

All these are historical facts from which we cannot run away. As an eminent Ghanaian Professor of Sociology of blessed memory once wrote: “History is sometimes troublesome, historical facts are often embarrassing in West Africa.” He later added: “The view-points and attitudes which people adopt towards their political, economic or social questions are influenced by their historical experiences.” So why should Ghana forget her recent past and refuse to celebrate her historic events?

Having reviewed and considered all the past legislation on public holidays since 1960 up to date, and having also reviewed events of the first ever coup we had in this country, it is quite plain that the anniversaries of the coup days had always been celebrated by successive governments since 1966. In my view, all those successive governments, both civilian and military, marked those historic occasions in the life of this country by making those days, 24 February, 13 January and 31 December, public holidays as a matter of policy. Regrettably, the majority decision could be described as “a massive repudiation of the experience of our recent past.” But no matter the attempt to bury the past, historians will unearth the past and pull together “the piece¼into a coherent whole.”

Be that as it may, from the history of public holidays as I have tried to set out supra, it must be clear to any unbiased mind that the choosing or the selecting of a day to be designated as a public holiday has always been a political decision for the executive and the legislature. The sovereignty of Ghana resides in the people as provided in article 1(1) of the Constitution 1992. So it is for the people of Ghana, acting through their elected representatives in parliament who, in conjunction with the executive, ought to decide which days out of the 365 days in a year should be designated public holidays and not for the judiciary to undertake that exercise.

It rests with the people of Ghana, in whom full and absolute power resides to instruct their representatives to have a look at the number of public holidays in the year and to make adjustments if necessary. Decisions, which are to be made, depending on political considerations and influence, should be the responsibility of the executive and parliament. Thus, whether a particular day in a year should be celebrated as a public holiday with fanfare and merry-making or not is a policy-decision for the executive and the legislature to make.

With the greatest respect, the majority decision in favour of the declarations sought in the writ is plainly an undue and unnecessary interference in the functions of the legislature and the executive. This court, in my view should always maintain a fine balance between the need to protect constitutional rights and liberties on one hand, and the danger of interfering in the affairs of the Executive and the legislative branches of the government on the other.

At the Third Conference of Chief Justices of Commonwealth Africa held in April 1990, in Livingstone, Zambia, (of which I happened to be a participant) the Chief Justice of Zimbabwe, the Honourable Mr Justice Dumbustshena (now retired) delivering a paper on the topic: Have the African judiciaries satisfied the expectations of their countries? He made a very pertinent statement, which I here quote extensively:

“Most of the difficulties confronting the judiciaries of Africa arise from failure to appreciate the relative functions of each branch of government. If each branch of the government appreciated its functions and those of other branches, there would be a desire to co-operate. The executive would comply with the orders and judgments of the courts. The legislature would not enact laws restricting the functions of the judiciary. And judges would not interfere with the legislative functions of parliament, that is, if we do not indulge in fanciful interpretations of words which are clear and unambiguous. ¼The slightest hint of interference by judiciary in the administrative functions of the executive invites its wrath. Keep away from them¼We must always remember that good governance includes a fair justice system. If we judges deliberately prop up, through our judgments and decisions, bad government, it cannot be said that our judiciaries have satisfied the expectations of our countries.” (Emphasis mine.)

The next query raised about the intended celebration on 31 December 1993 was that it was discriminatory. It was submitted by learned counsel for the plaintiff that the intended celebration of the 31st December revolution on 31 December 1993 was discriminatory. For why should the defendant pick on only 31st December when there had been other military take-overs which were not being celebrated; and that there was no justification to single out 31st December. If 24 February 1966 coup and 13 January 1972 coup were not worth celebrating, then 31st December revolution was also not worth celebrating.

I do not share that view. 31st December had been designated a public holiday by the Public Holidays Law 1989 (PNDCL 220) to be observed as such throughout Ghana. PNDCL 220 did not create 31st December a public holiday in favour of only the supporters of 31st December coup, or in favour of a privileged few, or in favour of only a section of the public. Thus, the fact that the plaintiff and some other persons did not take kindly to it, and did not see the wisdom in celebrating the day as a public holiday, did not make it discriminatory and therefore unconstitutional.

There was even no evidence whatsoever that the majority of the population also shared the same view as the plaintiff. As I have already pointed out in this judgment, it is the people of Ghana, acting through their elected representatives in parliament who can decide on which days shall be public holidays. That is, the executive and the legislature as the representatives of the people have the mandate of the people of Ghana to take that political decision.

If the argument of the plaintiff were to be carried to its logical conclusion, then the public holidays, which have been created all these years even from the colonial era up to date, to the advantage and benefit of Christians in this country could also be declared unconstitutional. Christmas Day (25 December), Good Friday and Easter Monday, for example, are days to mark the anniversaries of the day Christ was born, He was crucified and He arose from the dead. These days have no significance to the Muslims, Jews, heathens, and some other religious sects in the country. Yet all these persons are compelled to observe those days as public holidays. They do not go to work or open their shops on those days on pain of punishment if successfully prosecuted and convicted. Ghana has not been declared a Christian country by any law. At least, I have not come across any such law; and even if there was such law it would be unconstitutional in view of article 21(1)(c) of the Constitution 1992 which provides that:

 “All persons shall have the right to-

(c) freedom to practise any religion and to manifest such practice;”

The Constitution 1992 recognises variety of religious practices. Yet non-Christians are compelled to observe those days as public holidays, and this could amount to giving “different treatment” to Christians, “attributable only or mainly to religion or creed” while subjecting non-Christians to restrictions. Article 17(2) of the constitution states:

“17(2) A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.”

Then article 17(3) provides that:

“For the purposes of this article, to “discriminate” means to give different treatment to different persons attributable only or mainly to their respective description by race, ¼religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.”  (Emphasis mine.)

If therefore public holidays like 25 December, Good Friday, Easter Monday were not considered discriminatory, then it sounded rather hypocritical to single out 31st December out of the schedule and declare it discriminatory and therefore unconstitutional.

It is really a pity, that while in the process of construing PNDCL 220, “with modifications adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of this constitution” the majority of this court could come to the conclusion that 31st December should rather be expunged from the schedule to PNDCL 220 as a public holiday. Thus, sacrificing 31st December for those other public holidays, just mentioned, which are obviously and manifestly discriminatory within the meaning of the provisions of article 17 of the constitution.

I cannot help but quote an observation, which was once made by Benjamin Nathan Cardozo, Justice of the United States Supreme Court from 1932 to 1938. The learned judge said:

“Judges march at times to pitiless conclusion under the prod of remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it nonetheless, with averted gaze, convinced as they plunge the knife, that they obey the bidding of their office. The victim is offered up to the gods of jurisprudence on the alter of regularity.”

Non-Christians have so far not found it necessary to complain. This may be because they probably agree with the views put forward by the Right Reverend Kwesi Dickson (now President of the Ghana Methodist Conference) in his book entitled, The Story of the Early Church, first published in 1976 in London. At page 11 of that book the Reverend stated:

“In this world of a variety of religious practices, there was the tendency to believe that despite this diversity there was an underlying unity that all religions were at the root the same.” (Emphasis mine.)

Finally, may I remark that not every enactment passed by the legislature will be liked by each and every one of the over fifteen million people in this country. Some may hail it; others may not. Some may even be indifferent. But that is a far cry from saying that that piece of legislation is discriminatory.

On the spending of public funds, it was submitted by learned counsel for the plaintiff that the preparations for the celebration by marching, musical extravaganza and other activities would involve expenditure from public funds. Learned counsel referred to paragraph 1 of the statement of the defendant’s case and submitted that the fact that in spite of the fact that it was covered by an appropriation law, it was still unconstitutional and therefore null and void, so far as the funds were being committed to a celebration which was itself unconstitutional.

Learned counsel for the defendant contended that the public funds which had been ear-marked for the celebration were authorised under the Appropriation (1993 Financial Year) Law 1993 (PNDCL 314) which came into effect on 1 January 1993; and since parliament came into existence the latter, through its Finance Committee, had had a look at it and never found it necessary to make any alteration. Thus, contended learned counsel, the said Appropriation Law which had authorised the expenditure for the preparations or the celebration, which was to take place on 31 December 1993, was consistent with the provisions of the constitution; and that the said Appropriation Law (PNDCL 314) was indeed saved by the provisions of section 18(1) and (2) of the transitional provisions.

Learned counsel therefore submitted that it couldn’t be argued that the expenditure, which had in fact been authorised by law, was unconstitutional. Having already held or come to the conclusion that the celebration did not contravene any provision of the constitution, neither was it inconsistent with the spirit and the letter of the said constitution, the defendant could expend moneys towards the preparations for the said celebration out of public funds, provided the said expenses were approved by parliament. The plaintiff did not offer any evidence to show that the expenditure in question had not been catered for in the budget of 1993, that is, by the Appropriation (1993 Financial Year) Law 1993 (PNDCL 314), which came into operation on 1 January 1993.

In other words, the contentions that the use of public funds for the celebration was unconstitutional was not based on any concrete facts. They were based on speculations. This court does not lightly declare a conduct or legislation unconstitutional on mere speculation. The Appropriation (1993 Financial Year) Law 1993 (PNDCL 314) had been examined by parliament (through its Finance Committee) since parliament came into existence; and the latter did not effect any changes to it. The Appropriation (1993 Financial Year) Law 1993 (PNDCL 314) therefore formed part of the existing law of Ghana as provided in article 11(4) of the constitution. Again, section 19 of the transitional provisions made a special provision which put the validity of the said Appropriation (1993 Financial Year) Law 1993 (PNDCL 314) beyond doubt. It provides:

“19 Notwithstanding any law to the contrary, the financial estimates in operation for the financial year in being at the coming into force of this Constitution shall, until provision is otherwise made by Act of Parliament, continue and shall have full effect.”

In the circumstances, I am of the view that the money being spent on the preparations for the celebration on 31st December 1993 was duly authorised by law and therefore the expenditure was constitutional.

At best, the submissions of learned counsel for the plaintiff on the expenditure of public funds in that manner could be said to have been directed towards the morality of making those expenses rather than the legality of the expenditure. But this court must not stretch its morality to an extent that would amount to a reflection on the legislature and the executive. However, the truth of the matter was that the expenditure was sanctioned by law and that law was not inconsistent with any of the provisions of the Constitution 1992. This court therefore had no business to interfere in the matter.

For the above reasons, I came to the conclusion that all the grounds, upon which the declarations were sought by the plaintiff, had no legal justification whatsoever, and were in fact baseless. I therefore had no alternative but to dissent from the majority decision that was delivered on 29 December 1993.

AMUA-SEKYI JSC. In England, the courts have no power to question the validity of any law passed by parliament, their function being only that of interpreting the law in order to ensure that the wishes of parliament are carried out. There, it is all too true, as stated by Megarry VC in Manuel v Attorney-General [1983] 1 Ch 77 at 89, that the courts “recognise parliament as being omnipotent in all save the power to destroy its own omnipotence.” When, therefore, the courts question laws made by subordinate authorities, they do so in the name of parliament and on its behalf. Thus, even the power to question subordinate or subsidiary legislation may be taken away by statute. This is in line with the concept of the supremacy of parliament which means that the power of parliament to make law is, in the terminology adopted by Lord Birkenhead in McCawley v The King [1920] AC 691 at 704, uncontrolled. Therefore, if parliament were to pass a law making the birthday of the Queen’s poodle a public holiday, it would rank with one giving Englishmen the right to freedom of speech, assembly and association, and either may be repealed or amended in the same way. There is in England no fundamental or basic law by which the validity of other laws are to be judged.

On the attainment of independence, Ghana was governed under the Ghana (Constitution) Order-in-Council 1957, section 31(1) of which stated that “it shall be lawful for parliament to make laws for the peace, order and good government of Ghana.” These words were interpreted in Lardan v Attorney-General (1957) 3 WALR 114 to mean that, as in England, the parliament of Ghana had uncontrolled power to make laws. The Constitution of Ghana 1960 put the matter beyond argument when, after much circumlocution, it stated bluntly in article 20(6) that the power of parliament to make laws shall be under no limitation whatsoever. The result was what the preamble to the Constitution of Ghana 1969 called “a regime of tyranny.”

Before 1960, parliament passed the Deportation (Othman Lardan and Amadu Baba) Act 1957 to bring court proceedings challenging deportation orders to an end, the Deportation (Indemnity) Act 1958 to bar the courts from punishing two officers of the executive for their contempt in carrying out a deportation order at a time when there were proceedings in court challenging its validity; the Preventive Detention Act 1958 for the arrest and detention of persons without trial; and the Kumasi Municipal Council (Validation of Powers) Act 1959 to bring an action for damages for the unlawful demolition of premises to an end. After 1960, the executive, acting

under powers conferred by parliament, set aside a verdict of acquittal returned in favour of certain persons charged with treason and put the unfortunate prisoners back on trial. During the years 1966, 1969, 1972, 1979 and 1982, when the country was under extra-constitutional rule, the power of the law-making body to make laws was uncontrolled. Draconian laws were passed for the detention of persons without trial, for the seizure of property without compensation and to curtail access to the courts. Examples are the Protective Custody Decree 1966 (NLCD 2), Preventive Custody Decree 1972 (NRCD 2), Preventive Custody Law 1982 (PNDCL 4), confiscation under AFRCD 6, 9, 10, 15, 31, 38, 39, 52, 55, 60, and PNDCL 3, 9, 31, 76, 164 and 325, the Indemnity Decree 1973 (NRCD 227), Indemnity Decree 1979 (AFRCD 22), the Indemnity Law 1993 (PNDCL 313), Subversion (Amendment) No 2) Decree 1973 (NRCD 191), Ghana Cocoa Board Reorganisation and Indemnity Law 1985 (PNDCL 125), Sefwi Wiawso Settler Farms (Abatement of Proceedings) Law 1987 (PNDCL 173) and the Chieftaincy (Specified Areas) (Prohibition & Abatement of Chieftaincy Proceedings) Laws of 1989 and 1992, PNDC Laws 212 and 293.

The only periods in our short history that we have lived under governments with controlled legislative powers have been the years 1969-1972, 1979-1981 and since 1993. Articles 1(2), 3(1) and 3(2) respectively of the 1969, 1979 and 1992 constitutions of Ghana are in the same terms. They make the constitution the supreme law of the land and declare that any law found to be inconsistent with any provisions of the constitution shall be void; they declare that parliament shall have no power to enact a law to establish a so-called one-party state; and they make unlawful any activity of any person or group of persons which suppresses or seeks to suppress the lawful political activity of others. There are also in articles 43 and 89 of the Constitution 1979, and articles 56 and 107 of the Constitution 1992, provisions denying parliament the power to force down our throats any religious or political ideology or to alter the decision or judgment of any court, as well as placing limits on its power to pass retroactive laws.

In the Constitution 1992, article 58(1) which vests the executive authority in the President requires him to exercise it in accordance with the provisions of the constitution; article 93(2) which vests the legislative authority in parliament requires that the power be exercised in accordance with the provisions of the constitution; and article 125(3) which vests the judicial power in the judiciary is strengthened by clause 1 which makes the judiciary independent and subject only to the constitution. The situation in which we find ourselves is therefore entirely different from that of our predecessors when the 1957 and 1960 constitutions were in force, or when the country was under dictatorial regimes. Our inspiration should come from the decisiveness of Republic v Special Tribunal, ex parte Forson [1980] GLR 529 and Republic v Director of Prisons, ex parte Shackleford [1981] GLR 554, rather than the prevarication of Republic v Director-General of Prisons, ex parte Nti [1980] GLR 527, CA, and Republic v Special Tribunal, ex parte Akosah [1980] GLR 592, CA.

In ex parte Nti, the High Court overruled an objection to its exercise of jurisdiction and granted bail pending the hearing of an application for an order of habeas corpus. The Court of Appeal set these decisions aside and referred the case to the Supreme Court on the ground that the issue of jurisdiction raised before the High Court involved the interpretation of the constitution. In ex parte Akosah the Court of Appeal took the same position, set aside judgment of the High Court and referred the case to the Supreme Court to determine whether the High Court had jurisdiction to deal with the matter before it. In so doing, the Court of Appeal erred in two respects: first, by the decision of the Supreme Court in Republic v Maikankan [1971] 2 GLR 473 the High Court was not bound to refer the matter to the Supreme Court; secondly, when they referred the issue of jurisdiction to the Supreme Court they ceased to have power either to allow or dismiss the appeal. The law required that they await the decision of the Supreme Court and act in accordance with it. This was the plain demand of article 118(2) of the Constitution 1979, which was a reproduction of article 106(2) of the 1969, and is now article 130(2) of the Constitution 1992. Small wonder that Taylor J in ex parte Forson and Cecilia Koranteng-Addow J in ex parte Shackleford refused to be bound. Their examples should teach us to resolve to look issues straight in the face. Any waffling on our part at this point in our history would be inexcusable because we now have a fundamental or basic law which is superior to all other laws and by which the validity of all other laws are to be judged. We have the duty and the right and the power to ensure that the provisions of the constitution are observed.

It was the case for the defendant that we have no jurisdiction to entertain the action now before us. Counsel relied on section 34(3) of the transitional provisions of the constitution, which states:

“34(3) For the avoidance of doubt, it is declared that no executive, legislative or judicial action taken or purported to have been taken by the Provisional National Defence Council ¼or a member of the Provisional National Defence Council ¼or by any person appointed by the Provisional National Defence Council ¼in the name of ¼the Provisional National Defence Council ¼shall be questioned in any proceedings whatsoever and, accordingly, it shall not be lawful for any Court or other tribunal to make any order or grant any remedy or relief in respect of any such act.”

With this is usually read article 299 of the constitution, which provides:

“299 The transitional provisions specified in the First Schedule to this constitution shall have effect notwithstanding anything to the contrary in this Constitution.”

Section 34(3) is a reproduction of section 15(2) of the transitional provisions of the Constitution 1979, and article 299 reproduces article 217 of that constitution.

The meaning and effect of section 15(2) of the transitional provisions of the Constitution 1979 were considered by this court in Kwakye v Attorney-General [1981] GLR 9 at 14, SC when the former Inspector-General of Police sought to set aside his alleged trial and conviction by a shadowy group known then as the Armed Forces Revolutionary Council Special Court. When, relying on section 15(2), the defendant raised an objection to the exercise of jurisdiction by the court, the court said per Apaloo CJ at page 14:

“This subsection is very widely couched but it seems to us that as the plaintiff sought a relief which this court is prima facie entitled to grant, the defendant who claims that this court’s jurisdiction is ousted by this provision, must provide a factual basis for it. We think the defendant must produce facts which show that the Armed Forces Revolutionary Council took or purported to have taken judicial action against the plaintiff.”

And when, subsequently, the Attorney-General adduced evidence to show that on an unspecified date, unnamed persons sentenced Kwakye to 25 years imprisonment, the court, by majority decision in Kwakye v Attorney-General [1981] GLR 944, SC, held that this was sufficient and dismissed the action for want of jurisdiction. In his judgment, Apaloo CJ said at pages 954 and 960 - 961:

“The Attorney-General has since filed a statement of his case and produced both oral and documentary evidence with a view to showing that judicial action or purported judicial action within the true intendment of section 15(2) has been taken against the plaintiff and that this court is constitutionally enjoined to decline jurisdiction. Accordingly, the court’s task is to decide whether such a factual basis exists for the application of section 15(2) of the transitional provisions or whether the plaintiff has made out his entitlement to the reliefs he seeks without requiring us to do what the Constitution, 1979, forbids¼

The oral and documentary evidence led by the defendant was not contradicted by any evidence produced by the plaintiff. There is nothing intrinsically improbable about that evidence ¼

In those circumstances, the proper conclusion should be that the Armed Forces Revolutionary Council purported to take judicial action against the plaintiff.

That being so, section 15(2) of the transitional provisions ousts any judicial organ from jurisdiction to ‘make any order or grant any remedy or relief in respect of any such act.’ It follows that the declaration sought by the plaintiff cannot lawfully be granted.”

Sowah JSC said at pages 965 - 966:

“Even though I consider the trial, conviction and sentence of the plaintiff were a nullity because the trial itself did not match up to the criteria set by AFRCD 3, s 5, nonetheless, I hold the view that it was a purported trial, a fortiori, a ‘purported judicial action’.”

Archer JSC said at page 982:

“I would therefore hold that although there is no clear and conclusive evidence of a regular judicial action taken by the AFRC, yet there is unchallenged and uncontradicted evidence of a judicial action purported to have been taken by the AFRC against the plaintiff. Accordingly, this court is not at liberty to question the proceedings in the special court that tried and sentenced the plaintiff in absentia. Under section 15(2) of the transitional provisions, it is also not lawful for this court to grant the declaration sought by the plaintiff. The intention behind sections 15 and 16 of the transitional provisions is to make the executive, legislative and judicial actions taken or purported to have been taken by the former AFRC judicial appeal-proof, judicial review-proof and judicial interference-proof till eternity.”

Charles Crabbe JSC said at page 1032:

“The issue, then, is not whether the trial of the plaintiff had been held in accordance with the law under which the special court sought to exercise its jurisdiction. The issue is whether what was done looks like, or has the outward appearance of, a judicial action or could be considered as intended to seem, or made to appear as judicial action ¼I would say, then, that:

(a) the plaintiff was never tried, convicted or sentenced in accordance with the provisions of the Armed Forces Revolutionary Council (Special Courts) Decree, 1979 (AFRCD 3), as amended by Decree 1979;

(b) the sentence of 25 years imposed upon the plaintiff is an infringement of his fundamental human rights because he was not tried in accordance with the law.

But that, having regard to the provisions of section 15(2) and (3) of the transitional provisions to the Constitution, 1979, I cannot make ‘any order or grant any remedy or relief’ in respect of his purported trial.”

And Adade JSC said at pages 1038 and 1039:

“True, certain legal imperatives were ignored, making the trial short of a proper legal trial, even one in absentia ¼

Be that as it may, section 15(2) seeks to protect not only perfect judicial actions, but imperfect ones also¼It was a purported trial; a judicial action purported to have been taken by the Armed Forces Revolutionary Council special court.

Accordingly, section 15(2) operates to remove the action from the jurisdiction of the court ¼

Section 15(2) of the transitional provisions covers all executive, legislative and judicial actions of the Armed Forces Revolutionary Council ¼

Once an act is admitted or presumed or proved to be that of the AFRC, it ¼is bound to fall within this range of governmental activity and will automatically be caught by section 15(2) of the transitional provisions.”

Although Anin and Taylor JJSC expressed their dissent, their only quarrel with the decision was that in their view there had not been even the semblance of a trial. Earlier, they had agreed with the majority that all that the Attorney-General needed to do to meet the case put up by the plaintiff was to show that there had been a trial or purported trial. At the end of it all, this court decided that, although the alleged trial and conviction of Kwakye was a sham and a travesty of justice, it had no power to set the conviction aside.

If this decision was right then the present Attorney-General is on a strong ground when he contends that under the corresponding section 34(3) of the transitional provisions of the Constitution 1992 we have no power to entertain the action now before us. As there is here no dispute that the Public Holidays Law 1989 (PNDCL 220) was enacted by the erstwhile Provisional National Defence Council, the “factual basis” upon which the submission rests has been admitted. But I hold the view that the majority were wrong and Taylor JSC right when he protested at page 1070:

“In my humble opinion, the function of the Supreme Court in interpreting the Constitution or any statutory document, is not to construe written law merely for the sake of law; it is to construe the written law in a manner that vindicates it as an instrument of justice. If therefore a provision in a written law can be interpreted in one breath to promote justice and in another to produce injustice, I think the Supreme Court is bound to select the interpretation that advances the course of justice unless, in fact, the law does not need interpretation at all but rather specifically and in terms provide for injustice.”

As I shall show presently, this court had the power to quash or otherwise set aside the trial and conviction of Kwakye.

The phrase “for the avoidance of doubt” appearing in section 34(3) of the transitional provisions is not a formula for sweeping away the human rights provisions of the Constitution 1992. It is to be found also in articles 31(8), 32(5), 72(3), 82(6), 155(2) and 165. Like the expression, “for the purposes of” which is used in articles 10(2), 11(3), 17(3), 19(21), 36(5), 47(4), (7), 71(3), 94(4), 127(7), 152(2) and 181(6), its object is to explain, expand or limit the effect of an earlier provision. A fine illustration of the use of such phrases, words and expressions will be found in article 257(1), (2) and (3) which was taken, word for word, from article 188(1), (2) and (3) of the Constitution 1979. It reads:

“257(1) All public lands in Ghana shall be vested in the President on behalf of, and in trust for, the people of Ghana.

(2) For the purposes of this article, and subject to clause (3) of this article, “public lands” includes any land which, immediately before the coming into force of this Constitution, was vested in the government of Ghana on behalf of, and in trust for, the people of Ghana for the public service of Ghana, and any other land acquired in the public interest, for the purposes of the Government of Ghana before, on or after that date.

(3) For the avoidance of doubt, it is hereby declared that all lands in the Northern, Upper East and Upper West Regions of Ghana which immediately before the coming into force of this Constitution were vested in the Government of Ghana are not public lands within the meaning of clauses (1) and (2) of this article.”

Clause 1 states the law in general terms; clause 2 states what, for the purposes of clause 1, the term “public lands” includes; and, for the avoidance of doubt, clause 3 states what the term does not include.

With this as a guide, it will be seen that section 34(3) does not stand alone, but is referable to sub-sections 1 and 2. Sub-section 2 grants immunity from suit to all those who took part in the overthrow of the Limann government; subsection 1 grants immunity from suit to members of the Provisional National Defence Council; and, for the avoidance of doubt, sub-section 3 states that the indemnity so granted shall include executive, legislative and judicial actions taken or purporting to have been taken by the Council or their appointees. That is all the meaning that can properly be ascribed to section 34(1) (2) and (3). As the present action is not one for compensation or damages, or for punishing anyone, for anything done in the course of overthrowing the Limann administration, or by the former regime or their appointees during their rule we are not barred by these provisions from entertaining this action. If our predecessors in this court had confined section 15(2) of the transitional provisions of the Constitution 1979 to the indemnity granted by sub-section (1), as they should, they would have seen that they had jurisdiction to grant the relief sought by Kwakye.

In the light of the above, counsel’s contention that this court has no jurisdiction to entertain the present suit must be rejected because section 34(3) does not apply to the facts of this case. As there is no conflict between section 36(2) and any provision of the constitution article 299 does not apply. Finally, being part of the existing law as defined in article 11(4) of the constitution, Law 220 is required by clause 6 of the said article to be construed “with any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of this constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this constitution.” Put simply, this means that the existing law is subject to the constitution.

When the Nkrumah regime was overthrown in a coup d’etat on 24 February 1966, the new government made 24 February a public holiday in place of 21 September, Nkrumah’s birthday, and it was celebrated with pomp and pageantry until democracy was restored in 1969. When the Busia government was overthrown in a coup d’etat on 13 January 1972, the new regime declared 13 January of each year a public holiday. Again, that date ceased to be observed as a pubic holiday when democracy was restored. What we still have with us is 31st December, which marks the day the democratically elected government of Limann was overthrown.

The frequency with which we have overthrown constitutions and changed our laws on public holidays reminds one of the aftermath of the murder of Julius Caesar in 44 BC when one adventurer after another succeeded in making himself Master of Rome. To perpetuate his memory each in-coming dictator would set up his statue in public places. Unfortunately, no sooner had he crowned himself than another would-be emperor appeared on the scene to murder or depose him. In good time, someone had the bright idea that instead of erecting new statues to the emperor, the head of the former ruler should be knocked off the statues and the head of the new emperor put in their place! But for us, it is a serious question whether the law that compels us to observe 31st December as a public holiday is consistent with the constitution.

It was contended on behalf of the defendant that in making the announcement that 31 December 1993 was to be observed as a public holiday, the government was only giving notice to the public of what the law required without necessarily compelling anyone to observe it as such. This was by no means the case. Section 3 of Law 220 imposes penalties, including fines and imprisonment, on those who act in breach of the Law. In other words, if, on a day declared to be a public holiday, a worker, whether self-employed or not, who does not come within the exempted categories, goes to his work-place and engages in any labour for profit, he risks being arrested, charged with the commission of an offence and, if found guilty, fined or imprisoned. The question, therefore, whether that part of the Law dealing with 31st December is consistent with the constitution is not an academic one, but a very serious issue touching on the right to work.

It was further contended that the action was incompetent because it asked for a declaration that the observance of the day as a public holiday is inconsistent with the provisions of the constitution whereas the real complaint concerned the validity of Law 220. The short answer is this. If the observance of 31st December as a public holiday is inconsistent with the provisions of the constitution, so must the enactment, or that part thereof, which makes the day a public holiday be inconsistent with the provisions of the constitution. In any case, since this court has power under article 130 to interpret and enforce the constitution, whether the issue is raised before it or before another court, and whether it arises directly or is incidental to the determination of some other matter, this court is

competent to deal with the complaint now before it and make a pronouncement on the validity or otherwise of that part of Law 220 which makes the day a public holiday.

A comparison was sought to be made between the celebration of 31st December as a public holiday and the celebration of 4 July in the United States, and of 14 July in France. No doubt the architects of the coups of 24 February and 13 January were also certain that their work would endure. I would urge those who hold this view to show a little modesty and leave it to future generations to determine their place in history. Let them remember that Caligula made his horse Consul of Rome, and Nero played the lyre as Rome burned: they thought they were gods; we know they were not.

It was also said that the issue is a political one and that the plaintiff ought to have made their complaint to parliament. Perhaps, if they had been represented in parliament they might have sought an amendment or repeal of the offending legislation. However, there was nothing to stop them making a legal issue of it and coming to this court for redress. Parliament now has no uncontrolled right to pass laws on public holidays, any more than it has to declare a “one party” state, or make a party leader President for life or crown him emperor. As the fundamental or basic law the constitution controls all legislation and determines their validity. It is for the courts, as the guardians of legality, to ensure that all agencies of the State keep within their lawful bounds.

Article 3(3) makes it the offence of high treason for any person to suspend, overthrow or abrogate the constitution by violent or other unlawful means, or to aid and abet any other person in such acts. Clause 4 places on every citizen the duty, and gives him the right, to defend the constitution, and to resist any person who might seek to overthrow it and, in case the constitution is overthrown, to do all he can to restore the constitution. The message is clear: we have had enough of coups d’etat; we want no more; no one should be permitted to disturb the orderly progress of the nation by resorting to force as a means of achieving political office. There can be little doubt that the members of the Consultative assembly inserted these unusual provisions in the constitution because they were appalled by the ease with which past governments have been overthrown and the indifference shown by our people in defending their rights. For my part, I do not see how a law which requires all of us to celebrate with fanfare, feasting and dancing the overthrow by force of arms of a democratically elected government can exist side by side with these constitutional provisions.

It was for these reasons that I concurred in the orders made.

AIKINS JSC. On or about 14 December 1993 there was a publication in the print and other media in this country that the government had decided to celebrate the 31st December 1981 revolution in Accra, the highlight of which was reported to include a route march by the security services and various voluntary organisations, followed by a

wreath-laying ceremony at the revolutionary square. The publication added that the celebration would be rounded off by a musical carnival at the Trade Fair Centre in the afternoon. Believing rather strongly that the celebration was unconstitutional, the plaintiff, the New Patriotic Party, issued out a writ in this court on 21 December 1993, invoking the original jurisdiction of the court pursuant to articles 2(1)(b) and 130(1) of the Constitution 1992

(a) to declare that the said celebration and financing of it from public funds is inconsistent with, or in contravention of the letter and spirit of the Constitution 1992, and

(b) an order directing the government of Ghana to cancel all preparations hitherto made for the celebration aforesaid and to refrain from carrying out any such celebration financed from public funds.

The burden or gravamen of the plaintiff’s argument is that by the combined effect of clauses (3), (4), (5), (6) and (7) of article 3 and articles 35(1) and 41(b) of the Constitution 1992, the public celebration of the overthrow of the legally constituted government on 31st December 1981, and the financing of such celebration from public funds is inconsistent with, or in contravention of the letter and spirit of the Constitution 1992. The plaintiff contends that such celebration, route march and musical carnival cannot be held without financing from public funds since, for example, the security forces comprising the personnel of the Police Service, the Prisons Service and the Armed Forces of Ghana are paid directly from the Consolidated Fund or directly out of moneys provided by parliament. The plaintiff further contends that the financing of such celebration from public funds offends against the very existence of the constitution that it is an affront to democracy and democratic constitutional rule, and is subversive of the constitution.

Article 3 of the Constitution 1992 contains provisions in defence of the constitution, whereby all citizens of Ghana are enjoined to defend the constitution, resist any person or group of persons seeking to overthrow or abrogate the constitution by any violent or unlawful means. Article 35(1) declares Ghana to be a democratic State dedicated to the realisation of freedom and justice, a State in which sovereignty resides in the people from whom the government derives its powers and authority, and article 41(b) imposes a duty on all citizens of this country to uphold and defend the constitution.

The constitutional history of this country shows that similar provisions are contained in the 1969 and 1979 constitutions. Article 3 of the Constitution 1979, which deals with defence of the constitution is a reproduction of article 3 of the Constitution 1969. Thus it is specifically provided that any activity of any person or group of persons which suppresses or seeks to suppress the lawful political activity of any other person or persons shall be an unlawful act, and the punishment attached to that offence is an injunction by the Supreme Court against that person or group of persons from further carrying on any such activity and be bound over to be of good behaviour for a period of five years. For a second or subsequent offence such person or group of persons are liable to imprisonment for a term not exceeding 10 years, and in addition any person so convicted would be ineligible for election to parliament or for election to a local government council, or for appointment to any public office for a period of ten years beginning from the date of the expiration of the term of imprisonment.

But for the indemnity provision contained in section 15(1) of the transitional provisions of the Constitution 1979, all persons who took part or assisted in bringing about a change of government which took place on 4 June 1979 would have been liable to be prosecuted under article 3 of the Constitution 1969 on the coming into force of the Constitution 1979, because effluxion of time was no bar to criminal prosecution. Similarly, the indemnity provision contained in section 34 of the transitional provisions of the Constitution 1992 saved all persons who took part or assisted in bringing about the change of government which took place on 4 June 1979 and 31 December 1981 from criminal prosecution under article 3 of the Constitution 1979 on the coming into force of the Constitution 1992. Yet in spite of this immunity the defence would want to stretch section 34 to cover June 4th and December 31st by contending that section 34 makes the two processes legal and as such prevents any person from questioning the legality of the two processes. This submission, in my view, is preposterous and infantile, with all due respect to the learned Deputy Attorney-General. I fail to see the force of this argument. The two processes are definitely illegal, and I have not come across any rule or law that legalises them. Section 34 does not do so either.

Section 34(2), (3), (4) and (5) of the transitional provisions is completely different from the letter and spirit of the body of the constitution itself, and are certainly not in conformity with justice, but have been introduced in the constitution, to quote the language of Charles Crabbe JSC in Kwakye v Attorney-General [1981] GLR 944 at 1030 where he referred to section 15 of the transitional provisions of the Constitution 1979 which have been reproduced in identical terms in section 34 thus:

“To perpetrate an illegality, if an illegality there be¼ under the colour of the supremacy of the Constitution ¼

Nor are the actions called in question in conformity with the laws under which they were done. To use the instrumentality of the Constitution to cloak such actions with the semblance of legality is to do violence to decency and embarrass the Constitution - nay justice herself ¼That is the gravamen of our situation. That is the predicament in which we find ourselves today.”

It is equally an offence against the State, namely treason, punishable by death under section 180 of the Criminal Code, 1960 (Act 29) as amended by section 19 of the Constitution (Consequential and Transitional Provisions) Decree 1969 (NLCD 406). Section 180(2) defines treason by adopting the meaning assigned to it under article 20(16) of the Constitution 1969, which states as follows:

“(16) ¼treason shall consist only

(a) in levying war against Ghana or assisting any state or person or inciting or conspiring with any person  to levy war against Ghana; or

(b) in attempting by force of arms or other violent means to overthrow the organs of government established under this Constitution; or

(c) in taking part or being concerned in, or inciting or conspiring with any person to make or be concerned in, any such attempt.” (Emphasis supplied.)

As at 31 December 1981 this law had not been amended or repealed, and although the Constitution 1969 was suspended by paragraph 2 of the Armed Forces Revolutionary Council (Establishment) Proclamation, 1979, clause (2) of paragraph 3 of the proclamation continued in force any enactment or rule of law in force in Ghana. Thus section 180 of the Criminal Code 1960 continued in force. In like manner, although section 18(1) of the transitional provisions of the Constitution 1979 abrogated the Constitution 1969 which had been suspended, subsection (3) of section 18 states that “notwithstanding the abrogation of the said constitution and the repeal of the said Proclamation [ie Armed Forces Revolutionary Council (Establishment) Proclamation] any enactment or rule of law in force immediately before the coming into force of this constitution shall in so far as it is not inconsistent with a provision of this constitution, continue in force as if enacted, issued or made under the authority of this constitution.”

It means, therefore, that any person or group of persons who took part in the 31 December 1981 uprising that toppled the Limann administration of the third republic committed the offence of treason for which they could be prosecuted and sentenced to suffer death upon conviction.

Having said that, I come to article 3 of the Constitution 1992, which contains provisions in defence of the constitution. Clauses (2), (3) and (4) of that article provide as follows:

“3(2) Any activity of a person or group of persons which suppresses or seeks to suppress the lawful political activity of any other person or any class of persons, or persons generally is unlawful.

(3) Any person who

(a)   by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any  part of it, or attempts to do any such act; or

(b)   aids and abets in any manner any person referred to in paragraph (a) of this clause

commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.

(4) All citizens of Ghana shall have the right and duty at all times

(a)   to defend this Constitution, and in particular, to resist any person or group of persons seeking to  commit any of the acts referred to in clause (3) of this article; and

(b)   to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article.”

These clauses frown on any interference with the lawful political activity of any person, or overthrow or abrogation of the constitution by violent means, and bestow upon all citizens the right to defend the constitution. No doubt the purpose behind the enactment of these provisions is to remind those who took part in the June 4th and 31st December processes and those who intend to follow suit that it is a high crime to undertake such venture, and that they do so at their own peril.

The only exception that exonerates any person who overthrows or attempts to overthrow the organs of government from committing an offence is an act which aims at procuring by constitutional means an alteration of the law or of the policies of the government as contained in clause (18) of article 19.

Does it, therefore, accord with logic, reason and constitutional norm to submit that persons who have committed such high offence as treason should be allowed to celebrate the commission of their crime with moneys provided from the Consolidated Fund, and to proceed further to declare the days set aside for such celebration public holidays? The answer is definitely “No”. The declaration of such days as public holidays and the expenditure of public funds to aid the celebration are inconsistent with and a contravention of the letter and spirit of the constitution. The expenditure involved is no doubt a misuse and a waste of public funds and property contrary to article 41(f) of the constitution which imposes a duty on every citizen of this country to protect and preserve the public property and expose and combat misuse and waste of public funds and property. The argument therefore that since government has already started expending money in preparation for the celebration and should be allowed to undertake the celebration is therefore misconceived. If the expenditure so far is unconstitutional, should further expenditure to complete the cycle be allowed? Certainly not.

I need not reiterate that the celebration itself as a public holiday is unfair to those who were adversely affected by the uprising, and who have become impotent to resort to court action by reason of the indemnity provision in section 34(2) of the transitional provisions of the constitution. I agree with the plaintiff that it is an affront to democracy and democratic constitutional rule. The financing is totally unconstitutional and subversive of the constitution.

In my view the June 4th and the 31st December processes occasioned a breakdown of law and order, the negation of the rule of law and a circumscription of fundamental human rights and freedoms of the individual, which the constitution seeks to protect and preserve by its Preamble. The stability of the nation was shattered and polluted. There is truth in the contention that the celebration has the propensity of sending wrong signals to the youth of this country that the overthrow of the constitutional order by means of a coup d’etat is glorious, and incites and excites disorder to institutional settlement, and disrespect for constitutional authority. It tends to elate the security services into thinking that the overthrow of a duly constituted government enhances the prestige and status of the individual soldier partaking in such act, and that he stands to be wealthy and respected.

It is argued that there is no provision in the constitution that specifically proscribes or condemns the 31st December revolution, and for that matter the celebration is not inconsistent with the letter and spirit of the constitution. I must say that what the plaintiff is seeking here is a declaration, which raises an issue as to the interpretation of certain provisions of the constitution. By virtue of article 3(4) every citizen of Ghana has the right, constitutional or otherwise, to protect the constitutional order as established by the constitution so that it is not abolished or sought to be abolished. To enable this to be done the citizen has to seek an interpretation of the constitution as to the meaning or the effect of a particular provision or provisions of the constitution. See Tuffour v Attorney-General [1980] GLR 637, 649-650.

There is a controversy before us, and that controversy is whether the celebration of the 31st December revolution offends the constitution and the determination of this issue depends upon the interpretation of the constitution. This raises a justiciable issue, which this court has jurisdiction under article 2 of the constitution to adjudicate upon, and make such orders and give such directions as it may consider appropriate. It is therefore an abysmal misconception to argue that the said celebration involves a political decision which is best left to the electorate and parliament to consider, and not a constitutional matter requiring interpretation by the Supreme Court.

In effect it is being argued that this court ought not to enter the political thicket. This is wrong. There is no party politics in this, and the Supreme Court is not in the least dabbling in politics.

Advancing his argument in this field the learned Deputy Attorney-General relied on the English case of Scranton’s Trustee v Pearce [1922] 2 Ch D 81 and the American case of Baker v Carr 369 US (1962) to support his contention. I have read these two cases, and in my view Baker’s case is irrelevant to the issue under consideration. Baker v Carr was an apportionment case involving a constitutional challenge to a State’s districting of its State legislature. Even in the United States the political question doctrine is said to be in a state of confusion. Learned counsel’s reliance on Scranton’s case, especially on Lord Sterndale MR’s opinion at p 123 of the report, is to invite this court to look at the whole case, in particular PNDCL 220 to see how the Law came to be passed, and whether it formed part of the public policy of this country, and if it did then we should say that we have no jurisdiction to go into the matter. In my view even though parliament has the right to legislate, this right is not without limit, and the right to enact a law that June 4th and 31st December should be declared public holidays cannot be left to linger in the realm of public policy. Such legislation must be within the parameters of the power conferred on the legislature, and under article 1(2) of the constitution any law found to be inconsistent with any provision of the constitution (the supreme law) shall, to the extent of such inconsistency, be void. This constitutional criterion is what is used to test the validity or otherwise of all statutes or law, and it is against this criterion that the Public Holidays Law 1989 (PNDCL 220) must be tested.

The plaintiff need not specifically plead the unconstitutionality of Law 220 before this court can consider it. The declaration sought by the plaintiff is quite referable to section 1(1) of Law 220 read in conjunction with the schedule thereof which declares 4th June and 31st December public holidays, and since this is inconsistent with the letter and spirit of articles 3, 35(1) and 41(b) of the constitution, that portion of Law 220 is to the extent of the inconsistency null and void by virtue of article 1(2), and for that matter any court of competent jurisdiction or judge thereof is under a legal obligation to set it aside either suo motu or on application by the party affected. No judicial discretion arises here. The power of this court to set aside such provision is derived both from article 1(2) of the constitution and the inherent jurisdiction of the court: see Mosi v Bagyina [1963] 1 GLR 337. That portion of Law 220 should therefore be set aside as null and void, and it is hereby set aside.

An attempt was made to equate the 31st December revolution with the French revolution and the defence is contending that because that revolution is celebrated as a national day, 31st December should as well be so celebrated. This is an unfortunate comparison. Learned counsel did not particularise the similarities. However important this appears to the defence, I think this is not very relevant to the issue under consideration. However, since he has raised the issue I would like to make a comment.

The grounds for staging the 4 June 1979 and the 31 December 1981 coup d’etat or revolutions for that matter are well known to Ghanaians - alleged corruption of high officials, cheating, greed, charges of amassing wealth at the expense of the poor and needy, abuse of office for private profit, and dishonest acquisition of property, etc the authenticity of which accusations was unfortunately never tested in any court of competent jurisdiction in this country. With respect to the 4 June 1979 coup d’etat, Sowah JSC when delivering his opinion in the case of Kwakye v Attorney-General (supra) had this to say at pages 961 and 962:

“The successful mutineers established a government under the name of the Armed Forces Revolutionary Council ¼

During the early period of the new regime, the degree of violence and barbarity exhibited by it and some members of the Armed Forces were such that persons apprehensive of danger to their lives fled the country. Amongst those who fled were persons wanted by the Council.

There was no provision for arraignment of accused persons before the court. A great number of persons were apprehended in their homes and taken to court. The other mode of enforcing presence in the court was by announcement of names of persons wanted on the radio and television requesting them to report at Burma Camp ‘with immediate effect’.”

As to the procedure adopted in prosecuting the offences, the crimes of a number of persons arrested were not properly investigated before the accused were purportedly tried and convicted. Archer JSC had occasion to comment at p 973 of the Kwakye case:

“I must confess that this is the first time that I have come across a criminal conviction based on a mere perusal of the prosecution’s file without reliance on any sworn evidence.”

Anin JSC had this to say at page 987:

“Having been sworn on the cross, Flt-Lt Rawlings explained that during the administration of the AFRC, of which he was chairman, special courts were established to try certain offences under AFRCD 3. He continued: ‘I cannot give you the specifics; but I know they were tried. The trial of the SMC members executed was incomplete’.”

Justice Anin continued at p 988:

“In answer to the court’s question whether he could give specific details about Kwakye’s case without reference to the documents, the witness replied, ‘No. I cannot.’ Finally, he explained that when he stated in his evidence-in-chief that the trial of those SMC members who were executed was incomplete, he meant that they had not completed investigations into their assets.”

The French revolution, on the other hand, emanated from different premises. It was based on “Liberty, Equality and Fraternity.“ Inequalities were met everywhere and stopped all progress. The nobles and clergy were exempt from direct taxes, whereas most taxes were paid by the Third Estate, a class which included peasants, artisans, merchants and professional men. Even among these groups taxes were not equal. There were social and economic as well as political inequalities: See Compton’s Encyclopedia and Fact Index Edit p 441. Here in Ghana a constitutional order was already in existence before 31 December 1981.

What is rather disturbing is the heinous means adopted to effect the French change. A comparison that a renowned Prussian author, Friedrich von Gentz, makes between the American and French revolutions makes very fascinating reading, and illuminates the modus operandi of the French revolution during the process of take over. He says at p 63 of his treatise titled The French and American Revolutions Compared as follows:

“The French revolution was offensive in its origin, offensive in its progress, offensive in its whole compass, and in every single characteristic moment of its existence. As the American Revolution had exhibited a model of moderation in defence, so the French one displayed an unparalleled example of violence and inexorable fury in attack. As the former had always kept the vigour of its defensive measure in vigorous proportion to the exigency, so the latter, from the weakness of the resistance made against it, became more and more violent and terrible, the more cause it had to grow wilder.”

And at page 67 the author continued:

“As the American Revolution was a defensive revolution, it was of course finished, at the moment, when it had overcome the attack, by which it had been occasioned. The French revolution, true to the character of a most violent offensive revolution, could not but proceed so long as there remained objects for it to attack, and it retained strength for the assault.

The American Revolution, at every stage of its duration, had a fixed and definite object, and moved within definite limits and by a definite direction towards this object. The French revolution never had a definite object; and in a thousand various directions, continually crossing each other, ran through the unbounded space of a fantastic arbitrary will, and of a bottomless anarchy.”

I am encouraged to believe the Ghana government is not all that enthused by a situation of this nature as to lure it to clamour for the national celebration of its 31 December 1981 revolution. If, however, it is so infatuated to celebrate it, this court would justifiably discountenance it as much as the constitution frowns on it.

I find it difficult to appreciate the niceties of the argument that the celebration of the 31 December 1981 revolution is to be restricted to the historical values that the revolution stood for. There is nothing in the publication admitted in paragraphs 2, 5 and 11 of the defendant’s statement of case as well as in section 1(1) of PNDCL 220 that supports that contention. A historical account of the 31st December

revolution cannot be complete if its aims and modus operandi are divorced from its historical values. An account of the atrocities and brutalities that characterised the take over and the early stages of the revolution must definitely be highlighted. The three form a composite unit, and it is this unit that operates on the mind of the citizen. The argument, therefore, that it is only the historical values of the revolution that the government intends to celebrate is untenable, and in my view it is calculated to deceive this court. I reject it.

Further, the use of public funds to finance the celebration cannot be constitutional for the reason, as the defence puts it, that provision for that expenditure had been made in the 1993 Budget which was authorised by the Appropriation (1993 Financial Year) Law 1993 (PNDCL 314). Though sections 18 and 19 of the transitional provisions to the Constitution 1992 continued in force the Consolidated Fund, the Contingency Fund in existence before the coming into force of the constitution, together with the financial estimates in operation for the financial year in being at the coming into force of the constitution, section 36 emphasises that the application or enforcement of such expenditure must not be inconsistent with any provision of the constitution.

In my judgment, the application of funds so provided which is intended to be utilised for the celebration of the 31st December revolution is equally unconstitutional having regard to the conclusions already reached by me on the celebration itself.

Finally, the submission that this court has no jurisdiction to issue injunction against the government in constitutional cases should fail, because though article 57(4) of the constitution exempts the President, while in office, from liability to proceedings in any court for the performance of his functions under the constitution or any other law, article 2(2) empowers this court for purposes of any declaration under clause (1) of the article to make any order and give such directions as this court may consider appropriate for giving effect to the declaration so made. And clause (4) of the article creates an offence of high crime under the constitution against any person who disobeys or fails to carry out the terms of any such order or direction given by this court. In this wise, neither the President nor the Vice-President is exempted; failure on their part to obey or carry out the terms of any such order or direction constitutes a ground for removal from office under the constitution. The constitution therefore requires all persons including the President to obey and carry out such orders and directions made by this court under article 2 of the constitution or suffer the sanctions so imposed.

It is for the above reasons that I agreed to grant the declaration sought by the plaintiff, and endorsed that 31st December shall no longer be declared and observed as a public holiday, and celebrated as such out of public funds.

BAMFORD-ADDO JSC. The plaintiff invoked the original jurisdiction of the Supreme Court under articles 2(1) and 130(1) of the Constitution 1992 for a declaration:

 (1) That the public celebration of the overthrow of the legally constituted government of Ghana on 31 December 1981, and the financing of such celebration from public funds is inconsistent with or in contravention of the letter and spirit of the Constitution 1992 and more particularly articles 3(3), (4), (5), (6) and (7) and 35(1) and 41(b) thereof.

(2) An order directing the government of Ghana to cancel all preparations for the celebration of the overthrow of the legally constituted government of Ghana on 31 December 1981 aforesaid and to refrain from carrying out any such celebration financed from public funds.

I shall set out in extenso the relevant provisions on which plaintiff’s claim is based for ease of reference.

Articles 3(3), (4), (5), (6), (7), 35(1) and 41(b) provide as follows:

“3(3),  Any person who-

(a)   by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or

 (b) aids and abets in any manner any person referred to in paragraph (a) of this clause commits an offence of high treason and shall upon conviction, be sentenced to suffer death.

(4) All citizens of Ghana shall have the right and duty at all times -

(a)   to defend this Constitution, and in particular to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and

(b)   to do all in their power to restore this Constitution after it has been suspended, overthrown or abrogated as referred to in clause (3) of this article.

(5) Any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of this Constitution as referred to in clause (3) of this article, commits no offence.

(6) Where a person referred to in clause (5) of this article is punished for any act done under that clause, the punishment shall on the restoration of the Constitution, be taken to be void from the time it was imposed and he shall, from that time, be taken to be absolved from all liabilities arising out of the

punishment. (7) The Supreme Court shall on application by or on behalf of a person who has suffered any punishment or loss to which clause (6) of this article relates, award him adequate compensation, which shall be charged on the Consolidated Fund, in respect of any suffering or loss incurred as a result of the punishment.

35(1) Ghana shall be a democratic state dedicated to the realisation of freedom and justice; and accordingly, sovereignty resides in the people of Ghana from whom government derives all its powers and authority through this Constitution.

41(1) The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen -

(b) to uphold and defend this Constitution and the law.”

Articles 3(3), (4), (5), (6) and (7) as well as articles 35(1) and 41(b) quoted above, are the specific provisions of the constitution on which the plaintiff based its claim for the reliefs sought namely:

“That the public celebration of the overthrow of the legally constituted government of Ghana on 31 December 1981 is inconsistent or in contravention of the letter and spirit of the Constitution.”

The plaintiff’s grounds in support of the claim are contained in the statement of case filed as well as viva voce argument of counsel, Mr Peter Ala Adjetey in court. These submissions are briefly that since the 1960, 1969 and 1979 constitutions were not changed in accordance with the provisions for change spelt out in these constitutions, those changes were unconstitutional. Counsel referred to section 34(2) of the transitional provisions of the Constitution 1992 and stated that it was true that by virtue of that section it was not lawful for any court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the government of Ghana in respect of any act or omission relating to or consequent upon the coup of 1981, but this action was not instituted in respect of section 34(2) and therefore the court could declare that the change in government in 1981 was unconstitutional.

I think it would be convenient to pause here to answer this submission straightaway. This submission has two parts to it the first part is that since 1960, 1969 and 1979 the constitutions were not changed in accordance with the constitutional provisions spelt out in those constitutions, the changes were unconstitutional. This is a correct statement. The second submission however is not legally correct because for section 34(2) of the transitional provisions of the Constitution 1992 to have effect, it was not necessary that plaintiff’s action should have been instituted under the said section. In whatever garb a claim is clothed if it can be said to fall within the provision of section 34(2), that section would have automatic operation and the court would be effectively precluded from taking any decision concerning matters specified therein or granting any remedy or reliefs. This means that even if coups are unconstitutional this court cannot pronounce on such unconstitutionality for the purpose of granting any reliefs.

According to Mr Adjetey the grant of immunity to coup makers means they are wrongdoers and therefore reliefs could have been sought against the government of Ghana, that is why the immunity was provided. This deduction cannot be challenged. He then referred to article 3(3)(a) and (b), which says that coups are illegal and submitted that this is what took place on 31 December 1981, which abrogated the Constitution 1979. He submitted: (1) that there had been some coups before 31st December and if those dates are not celebrated as public holidays it would be discriminatory to celebrate only 31st December which was not even worth celebrating; (2) that celebrating that day as a holiday would send wrong signals to citizens of Ghana that the overthrow of a constitutional government was the highest achievement that anyone could attain; (3) that the celebration would remind Ghanaians of the atrocities committed by soldiers as a result of the 31st December coup and for these reasons the celebration was inconsistent with the provisions of article 3(3), (4), (5), (6) and (7) and also article 35(1) and 41(b) of the constitution therefore it should be declared null and void. He said further that the celebration of 31st December from public funds was also inconsistent with the constitution and totally unconstitutional. Whether the financing of the celebration from public funds is also unconstitutional I believe would depend on the finding whether the declaration that 31st December be observed as a public holiday is unconstitutional. If it is not unconstitutional then there would be no need to consider this issue.

The Deputy Attorney-General Mr Amidu for the defendant denies that the celebration of 31st December mandated as a public holiday under PNDCL 220 is unconstitutional or null and void. Paragraphs 15 and 16 of the defendant’s statement of case states:

“15 The defendant maintains that what the plaintiff is seeking to do is to question the constitutionality and legality of the 31st December revolution, and the events which gave rise to that revolution on 31 December 1981 which should not be entertained by the court by virtue of section 34 particularly subsection (3) of the transitional provisions scheduled to the constitution.

16 The defendant says in the premise that the plaintiff is not entitled to the reliefs sought or at all.”

It seems to me that there are three important issues calling for a decision in this case. They are:

(1) Whether PNDCL 220 regarding the part declaring 31st December as a public holiday, is inconsistent with or in contravention of the letter and spirit of the Constitution 1992 particularly article 3(3), (4), (5), (6) and (7) and article 35(1) and 41(b) of the Constitution 1992.

(2) Whether the plaintiff’s case is substantially based on the overthrow of the Constitution 1979 or the 31 December 1981 coup by the PNDC.

(3) Whether even if the 31st December coup was unconstitutional this court has the jurisdiction to grant the reliefs sought by plaintiff.

The answers to these questions, would, I believe resolve this case.

Article 2(1) of the constitution provides that:

“A person who alleges that -

(a)   an enactment or anything contained in or done under the authority of that or any other enactment; or

(b)   any act or omission of any person

is inconsistent with or is in contravention of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.” (Italics mine.)

Even though plaintiff in his claim did not rely directly on the Public Holidays Law 1989 (PNDCL 220) which enacted that 31st December was to be a public holiday, in actual fact, this is the enactment or the authority under which the government acted to declare the said date as a public holiday, and should be the enactment to which plaintiff’s complaint refers. Now the question is, is PNDCL 220 inconsistent with article 3(3), (4), (5), (6) and (7) of the constitution, having regard to articles 35(1) and 41(b) thereof?

I shall proceed to interpret the constitution as I see it in accordance with the rules of constitutional construction or interpretation. It is a fact that the 31st December coup, was the overthrow of a constitutional government under the Constitution 1979. It is also true that the change of government was not effected in accordance with chapter 25 thereof, so for purposes of argument only, it can be said that the change in 1981 was unconstitutional. But even if the 31st December action in 1981 were unconstitutional, which as I have said above, this court has no jurisdiction to decide upon, it does follow automatically that PNDCL 220 declaring 31st December as a public holiday should also be unconstitutional and null and void. The unconstitutionality of that Law must be satisfactorily proved.

In 1989 when PNDCL 220 was passed by the ruling PNDC government, that government was the de facto and de jure government of Ghana. The Provisional National Defence Council (Establishment) Proclamation 1981 established the PNDC, which was mandated to exercise all powers of government and was given power to make laws to regulate the affairs of the Republic of Ghana. For this reason PNDCL 220 was a law properly enacted by the PNDC in 1989 when the Constitution 1979 was abrogated. Later, the Constitution 1992 came into force on 7 January 1993, and from that date the prospective constitutional provisions became operative but not with retrospective effect whether in whole or in part. This point must not be lost sight of.

The constitution also saved all existing laws in operation on 7 January 1993; see article 11(1)(d) and 11(5) which provide:

“11(1) The laws of Ghana shall comprise-

(d) the existing law;

(5) Subject to the provisions of this Constitution, the existing law shall not be affected by the coming into force of this Constitution.”

Therefore PNDCL 220 will continue to be part of the laws of this country until, in accordance with article 2, the Supreme Court declares it or part of it, inconsistent with the Constitution 1992 and therefore null and void. This is what the plaintiff is seeking to do. To succeed, plaintiff must satisfactorily prove its case otherwise it will not be entitled to the reliefs sought in its writ. The provisions of article 2(1) affect all existing laws of this country including those passed by the PNDC government as well as those passed or to be passed by the present government or by any future government. This has to be so, because the constitution is the basic and supreme law, which embodies the will of the people of this country, and it must rightly be the criteria by which the legality or constitutionality of all laws of this country should be tested. Thus article 1(2) of the constitution states that:

“1(2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”

The plaintiff has by his writ challenged the part of PNDCL 220 which declares 31st December a public holiday, and is relying on article 2(1)(a) to get a declaration to the effect that a part of PNDCL 220 is inconsistent with articles 3(3), (4), (5), (6) and (7) and therefore null and void. It is important that a thorough comparison is made between articles 3(3), (4), (5), (6) and (7) and PNDCL 220, to determine whether there is inconsistency between the two enactments. I have taken pains to scrutinise the two and I cannot by any stretch of the words in article 3(3) etc say that the two are inconsistent. A correct literal interpretation of the wording of article 3(3) is that any person who unlawfully overthrows the government or “suspends or overthrows or abrogates the Constitution 1992 or any part of it” or any person who aids or abets in any manner such an enterprise commits the offence of high treason punishable on conviction by death. This article refers specifically to the Constitution 1992, not any past constitution, and makes the operation of the constitution prospective not retrospective. It is concerned with future coups, not past coups and seeks to ensure that no government in this country after 7 January 1993 is unlawfully removed or the Constitution 1992 abrogated.

I am unable to find words in article 3(3), which outlaw the public celebration of any past coup eg, 31st December coup for which reason the celebration of same can be said to be either in contravention of or inconsistent with the provisions of article 3(3) etc. Indeed, if as I said before, by virtue of section 34(2) of the transitional provisions of the Constitution 1992 we are not permitted to hold an inquiry into matters pertaining to the 31st December coup, or to borrow the words of Archer JSC in the case of Kwakye v Attorney-General [1981] GLR 944, SC, if we are “prevented from conducting any transillumination” into PNDC coup affairs, then we cannot take any decision as to the unconstitutionality of the 1981 coup upon which we can rely to judge the unconstitutionality or otherwise of PNDCL 220. We must look only within the four corners of the Constitution 1992 to make such a judgment, having regard to the letter, ie words and the spirit of the constitution as contained in chapter 6 thereof, or in this case, as can be deduced from articles 35(1) and 41(b).

I might however be tempted to hold such view if the celebration of 31st December as a public holiday could be said to be subversive of the Constitution 1992, in that it was an intended attempt to overthrow the NDC government or induce others to do so. But then can it be the intention of the government, to commit political suicide? I think not. It seems to me rather that it should be the ardent or passionate desire of this government to prevent coups through upholding the provisions of article 3(3) as it is in duty bound to do under article 3(4), which duty had particular reference only to article 3(3) of Constitution 1992. I am convinced that by the letter of article 3(3) of the constitution, the provisions of PNDCL 220 as regards the celebration of 31st December as a public holiday, cannot be said to be inconsistent with or in contravention of the letter of article 3(3) etc. and I so hold.

Now I come to the spirit of the constitution. Plaintiff, apart from article 3 relied also on articles 34(b) and 35(1) and the directive principles of state policy to ground its claim. But the said principles are not justiciable and plaintiff has no cause of action based on them. Those principles were included in the constitution for the guidance of all citizens, parliament, the President, judiciary, the Council of State, the cabinet, political parties or other bodies and persons in applying or interpreting the constitution or any other law and in taking and implementing any policy decision, for the establishment of a just and free society. The judiciary is to be guided, while interpreting this constitution, by only the specific provisions under chapter 6.

The reasons for these principles which the consultative assembly relied on in formulating chapter 6 are stated at paragraphs 94-97 of the report of the committee of experts on the proposals for a draft constitution of Ghana as follows:

“Paragraph 94 The NCD report speaks of the need to include in the new Constitution “core principles around which national political, social and economic life will revolve.”

This is precisely what the directive principles of state policy seek to do. Against the background of the achievements and failings of our post-independence experience, and our aspirations for the future as a people, the principles seek to set the stage for the enunciation of political, civil, economic and social rights of our people. They may thus be regarded as spelling out in broad strokes the spirit or conscience of the constitution. The committee used chapter 4 of the Constitution 1979 as a basis for its deliberations on this subject.

“95 By tradition Directive Principles are not justiciable; even so, there are at least two good reasons for including them in a Constitution. First, Directive Principles enunciate a set of fundamental objectives, which a people expect all bodies and persons that make or execute public policy to strive to achieve. In the present proposals, one novelty is the explicit inclusion of political parties among the bodies expected to observe the principles. The reason for this is that political parties significantly influence government policy. A second justification for including Directive Principles in a constitution is that, taken together, they constitute, in the long run, a sort of barometer by which the people could measure the performance of their government. In effect they provide goals for legislative programmes and a guide for judicial interpretation.

96 On the basis of the foregoing considerations, the Committee proposes as follows: The Directive Principles of State Policy are for the guidance of Parliament, the President, the Council of Ministers, Political Parties and other bodies and persons in making and applying public policy for the establishment of a just and free society. The Principles should not of and by themselves be legally enforceable by any Court. The courts should, however, have regard to the said Principles in interpreting any laws based on them.

97 In view of the fact that the Principles are not justiciable, it becomes necessary to provide a standing reminder to an incumbent Government that it is expected to take necessary measures to achieve them. For this purpose, the Committee considered it adequate to adopt the provision in the Constitution 1979 stipulating that, at least once a year, the Government should report to Parliament all the steps it has taken towards achieving the policy objectives; particularly, towards the realisation of a healthy economy, the right to work, the right to good health care and the right to education.”

It is under chapter 6 that we find the spirit or conscience of the constitution and it seems to me that the plaintiff’s arguments and reasons for suing are based mainly, according to him, on the spirit of articles 35(1) and 41(b). For emphasis and ease of reference I quote again the provisions of articles 35(1) and 41(b). Articles 35(1) and 41(b) come under Political Objectives and state:

“35(1) Ghana shall be a democratic state dedicated to the realization of freedom and justice, and accordingly, sovereignty resides in the people of Ghana from whom Government derives all its powers and authority through this Constitution.”

Article 41(b) comes under Duties of a Citizen and state:

“41 The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen -

(b) to uphold and defend this Constitution and the law…”

Articles 35(1) and 41(b) quoted above merely provide that it is the duty of all citizens of this democratic State to uphold this constitution in any way, including by virtue of article 3(4) resisting future coups and obeying the precepts of the constitution. It is my duty to give faithful interpretation to the words having regard to the spirit of the constitution as I see them, my political or moral views or that of any other person however right notwithstanding. As I said above I am unable to find direct or indirect words in article 3(3) or any other provision of the constitution to the effect that the celebration of 31st December as a public holiday should be unconstitutional. This also applies to the words of article 35(1) and 41(b) and for this reason I cannot interpret these constitutional provisions as we are being urged to do. The constitution must be interpreted according to both the letter and spirit together. In Sallah v Attorney-General (1970) 2 G&G 493, CA, Sowah JA said:

“I consider that the best guide to interpretation is the letter and spirit of the Constitution, if the intention of the Assembly [which drafted the Constitution] can be collected from the words used and if that intention, when so collected, is in consonance with the spirit of the Constitution, then there is no need for further aids.”

See also holding 5 of Tuffour v Attorney-General [1980] GLR 637 where it was held:

“The duty of the court in interpreting the provisions of article 127(8) and (9) was to take the words as they stood and give them their true construction having regard to the language of the provisions of the Constitution, always preferring the natural meaning of the words involved, but nonetheless giving the words their appropriate construction according to the context.”

Per Sowah JSC at p 648:

“And so construction should be avoided which leads to absurdity. And when the particular interpretation leads to two, shall we say ‘inconsistent’ results, the spirit of the Constitution would demand that the more reasonable, of the two should be adhered to. We must have recourse to the Constitution as a whole.”

The rule is that the plaintiff must state the basis of his claim specifically and prove same if he is to succeed. I am afraid the plaintiff has not been able to do so. In view of the fact that there were no specific words making PNDCL 220 inconsistent with article 3(3) etc, it was incumbent on plaintiff to have adduced evidence in support of his case. He failed to do this and he should not have obtained judgment in his favour in a case based only on counsel’s own notions or speculations on the possible effects of the celebration of 31st December holiday.

I now move on to consider the validity of the arguments of the plaintiff’s counsel in support of this case. His first submission was that since there had been coups before 31st December, if those dates were not also celebrated now as public holidays it would be discriminatory to celebrate only 31st December as a public holiday. It is a fact that the dates of past coups as well as some political events have been celebrated as public holidays by various governments since 1960 to date. Any government in the exercise of its executive powers can in its discretion, specify any day to be celebrated as a public holiday. The Public Holidays Act 1960 (Act 23) passed by the Nkrumah government made National Founders Day, 21 September, as well as other specified dates public holidays. The holidays under Act 23 were according to the schedule as follows:

New Year’s Day (1 January)

Ghana Independence Day (6 March)

Good Friday

The Saturday next following Good Friday

Easter Monday

Republic Day (1 July)

National Founder’s Day (21 September)

Christmas Day

Boxing Day.

Section 1(2) of Act 23 provided that:

“1(2) In addition to public holidays prescribed by sub-section (1) of this section the President may by executive instrument declare any other day to be a public holiday and may by the same instrument limit its observance to any area or place in Ghana.

(4) The President may by legislative instrument amend the schedule to this Act.” (Emphasis mine.)

In 1972 the Public Holiday Decree 1972 (NRCD 18) was passed by the Acheampong government. It repealed Act 23 and provided certain dates to be celebrated as public holidays. That list excluded the National Founder’s Day, 21 September and Republic Day, 1 July and substituted the National Redemption Day, 13 January, the date of Acheampong’s coup and the first Monday in August as public holidays. Even though 24 February, the date of the NLC coup, was not listed in the schedule to NRCD 18, the government of NRC by EI 17 of 1973 declared that day a public holiday under s 2 of NRCD 18, which gave the government power to declare other dates as public holidays. Later NRCD 262 repealed NRCD 18 and provided a new list of public holidays. This law excluded the first Monday in August and in its place substituted again Republic Day, 1 July as was earlier provided in Act 23.

NRCD 262 which contained 13 January, the date of Acheampong’s coup continued to be the law governing public holidays in this country from 1974 until it was repealed by the PNDC in 1989 by the Public Holidays Law 1989 (PNDCL 220) despite the takeover of a constitutional government in 1979. PNDCL 220 also set out the list of public holidays as amended by PNDCL 274 and repealed NRCD 262. That list included among others new dates namely 31st December, 4th June and Farmers Day, the first Friday in December. It can be seen that the fixing of a date for celebration as a public holiday is a policy decision of government, an executive act, and can be changed whenever the government deems it expedient to do so by legislation. It seems to me therefore that 31st December as a public holiday unless unconstitutional, which I have said it is not, can only be deleted from the list of public holidays by a government which so desires such a policy decision, to take necessary legislative action to delete the date from the list provided in PNDCL 220. It is during the debate on such a matter in parliament that arguments such as were canvassed here could properly be made to influence parliament to repeal any date eg 31st December from the list specified in the schedule to PNDCL 220. In that forum, but not here, policy issues could rightly be canvassed and considered. Since the dates of all past coups have been celebrated at one time or the other depending on which government was in power, the argument that the celebration of 31st December is discriminatory is in my view not a valid point, unless of course it is counsel’s case that if all the dates of past coups are celebrated as public holidays then the celebration of 31st December would be constitutional. The flaw in this argument is obvious, and counsel’s submission on this issue is not his strong point and does not advance his case one bit, I reject it.

The second submission was that celebrating that day as a holiday would send wrong signals to citizens of Ghana that the overthrow of the constitutional government was the highest achievement any one could attain. I doubt the soundness of this reasoning. I have said earlier it cannot be the intention of the government to send those signals inviting a coup against itself, nor do I think that any reasonable person in a trotro in Ghana today would consider the celebration as sending signals to people to stage a coup, in view of the strong stipulation in article 3(3) that any future coups would be punished by death of the coup maker. Indeed counsel’s conclusion on this issue seems to me to be too far fetched to be reasonable or valid.

The third submission is that the celebration would remind Ghanaians of the atrocities committed by soldiers in executing the 31st December coup. I, speaking for my self, in all fairness to the defendant, do not think that the government’s intention of celebrating 31st December is to remind or induce Ghanaians to relive the horrors of the early days of the coup, especially when the injuries resulting from that coup had been regretted by the government of the PNDC. Indeed, counsel for the defendant said it was the gains of 31st December revolution that were being remembered and celebrated as a historical event. To carry counsel for plaintiff’s argument to its logical conclusion would result in an absurdity. It would mean that because the mention of 31st December reminds some people of the horrors of the coup any thing, whether beneficial or not done by the PNDC government ought to be declared unconstitutional and therefore null and void. To accept this reasoning would mean that all laws passed by the PNDC government, since 1981 (even though article 11 of the Constitution 1992 saves them as part of the laws of Ghana) because they remind people of 31st December should all be declared null and void as being unconstitutional. This ground advanced by counsel to support the plaintiff’s claim is also unmeritorious. This leads me to the proper effect of counsel’s whole arguments and submissions as I see them.

It seems to me considering the real import of the arguments of the plaintiff’s counsel that he is calling upon us to judge this case by the application of some moral or political policy consideration, or that he is propounding a novel policy issue for our guidance here. However right such a policy consideration may be, this court cannot be guided by it in our interpretative duty. The only policy issues permitted to be considered by us are those state policy considerations set out specifically in chapter 6 of the constitution. I am afraid if they have no application to this case no other constitutional one can be considered. It is not for the judiciary to formulate public policy issues, but for the executive or the legislature, and we cannot usurp their function either directly or indirectly. To accept plaintiff counsel’s submissions so as to give judgment for him would be to open wide floodgates to litigants who seek to influence our decisions in this court with their ideas or ideals of what public policy ought to be. It would be dangerous to accede to this request, as I shall explain hereunder.

Generally in the interpretation of statutes, public policy considerations cannot be used as a guide by judges or influence their decisions, except those apparent in an enactment under consideration, or those eg in contract, which have crystallised into principles or rules of law or equity. This is because of the dangers inherent in changing public policy. Public policy has been said to be a “very unruly horse.” In Richardson v Mellish (1824) 2 Bing 252 Burrough J said:

“If it is illegal it must be illegal either on the ground that it is against public policy or against some particular law. I for one, protest as my Lord has done against arguing too strongly upon public policy, - it is a very unruly horse, and when once you get astride it you never know where it would carry you, it may lead you from the sound law. It is never argued at all but when other points fail.”

As stated also in Egerton v Brownlow (1853) 4 HL Cases 1 at 123, HL, Parke B warned:

“[P]ublic policy¼is a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when applied to the decision of legal rights; it is capable of being understood in different senses; it may and does, in its ordinary sense, mean political expedience, or that which is best for the common good of the community; and in that sense, there may be every variety of opinion, according to education, habits, talents, and dispositions of, each person. Who is to decide whether an act is against public policy or not. To allow this to be a ground of judicial decision, would lead to the greatest uncertainty and confusion. It is the province of the statesman, and not the lawyer to discuss and of the legislature to determine, what is the best for the public good and to provide for it by proper enactments. It is the province of the judge to expound the law only, the written from the statutes; the unwritten or common law from the decisions of our predecessors and of our existing courts, from text writers of acknowledged authority and upon principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is best, in his opinion, for the advantage of the community. Some of these decisions may have no doubt been founded upon the prevailing and just opinions of the public good, for instance, the illegality of covenants in restraint of marriage or trade. They have become part of the recognised law and we are therefore bound by them, but we are not thereby authorised to establish as law everything which we may think for the public good, and prohibit everything which we think otherwise. The term “public policy” may indeed be used only in the sense of the policy of the law and in that sense it forms a just ground of judicial decision¼But we are clearly of the opinion that this cannot be shown here.”

In re Mirams (1891) 1 QB 594 at 595 Cave J observed that, “judges are more to be trusted as interpreters of the law than as expounder of what is called public policy.” In Janson v Driefontein Consolidated Mines Ltd [1902] AC 484 at 500 HL, Lord Davey said:

“Public policy is always an unsafe and treacherous ground for legal decisions and in the present case it would not be easy to say on which side the balance of convenience would incline.”

In Ewart v Ewart [1958] 3 WLR 687 Lord Merriman P said:

“The court in the face of plain words of the statute is not concerned with questions of public policy which are said to have prevailed before it was passed.”

In Besant v Wood (1879) 12 Ch D 605 at 620 Jessel MR said of public policy thus:

“This is a branch of the law which depends upon what is commonly called “public policy.” Now you cannot lay down any definition of the term “public policy” or say it comprises such and such a proposition, and does not comprise such and such another; that must be, to a great extent, a matter of individual opinion because what one man, or one Judge, and perhaps one woman also in this case, might think against public policy, another might think altogether excellent public policy. Consequently it is impossible to say what the opinion of one man or a Judge might be as to what public is.”

The position in this country as regards statutory interpretation is not different. The constitution however has set out in chapter 6 the policy of the State, regarding political objectives, economic objectives, social objectives, educational objectives, cultural objectives; also State policy in relation to international relations and, duties of a citizen which should be used as guide by the judiciary in the interpretation of the constitution. Article 35(1) which plaintiff referred to deals with political objectives. I will quote it again for emphasis. It says that:

“35(1) Ghana shall be a democratic state dedicated to the realisation of freedom and justice; and accordingly sovereignty resides in the people of Ghana from whom Government derives all its powers and authority through this Constitution.”

I have considered this provision and I am unable to see how in the spirit of these words I can interpret the letter of article 3(3), (4), (5), 6) and (7) to enable me to hold that there is inconsistency between PNDCL 220 and article 3(3).

As far as I am concerned, only the presence in the constitution of specific words capable of being interpreted to this effect would convince me to accept the interpretation which I am being invited to put on articles 35(1) and 3(3) etc. The other article, which the plaintiff referred us to ie 41(b) says:

“The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations and accordingly it shall be the duty of every citizen

 (b) to uphold and defend this constitution and the law.”

The meaning of this provision also, does not seem to me to accord with the interpretation which counsel is suggesting to us. The fact that all Ghanaians have a duty to defend and uphold the constitution does not by its spirit lead me to the conclusion that article 3(3), etc should be interpreted to mean that 31st December is unconstitutional and should not be celebrated ever as a public holiday. Such an interpretation would be far-fetched and wrong. As I see it, none of the articles in chapter 6 can be so construed. I am not also prepared to admit any policy issue not specifically mentioned within the four corners of the constitution to guide me in my interpretative duty, which as I said before appears to me to be what counsel is asking us to do.

I am bound to interpret constitutional provisions by applying only the directive principles of state policy contained in the four corners of the constitution as specified in chapter 6 thereof. I think it would be wrong to allow policy issues outside those specified in the constitution to influence us here in view of the fickle nature of public policy and the dangers inherent in doing so, as already stated above.

In my judgment the language of article 3(3), (4), (5), (6) and (7) does not outlaw in clear unambiguous language past coups, but only seeks to prevent such future actions, and the spirit of articles 35(1) and 41(b) cannot result in such a conclusion. I am afraid I am precluded from interpreting article 3(3) etc in the manner urged upon us this case. Section 34(2) of the transitional provisions states in clear words thus:

“34(2) It is not lawful for any court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the Government of Ghana or any person acting under the authority of the Government of Ghana whether before or after coming into force of this Constitution, or against any person or persons acting in concert or individually to assist or bring about the change in government which took place on the twenty-fourth day of February 1966, on the thirteenth day of January 1972, on the fourth day of June 1979 and on the thirty-first day of December 1981 in respect of any act or omission, relating to, or consequent upon -

(a) the overthrow of the government in power before the formation of the National Liberation Council, The National Redemption Council, the Supreme Military Council, the Armed Forces Revolutionary Council, and the Provisional National Defence Council; or

(b) the suspension or abrogation of the constitutions of 1960, 1969, and 1979; or

(c) the establishment of the National Liberation Council, the National Redemption Council, the Supreme Military Council, which took office on the ninth day of October 1975, the Supreme Military Council established on the fifth day of July 1978, the Armed Forces Revolutionary Council, or the Provisional National Defence Council; or

(d) the establishment of this Constitution.” (Emphasis mine.)

It means as regards this case that this court is precluded or its jurisdiction is ousted from making any order or granting any remedy or relief to the plaintiff, if the basis or foundation of the case is in respect of, or “consequent upon” the “overthrow” of Hilla Limann’s government on 31 December 1981 by PNDC. I have to interpret section 34(2)(a) in the same way and manner I have done in respect of article 3(3) so as to give effect to every word in section 34(3)(a). It is worthy of note that the same word namely “overthrow” was used by plaintiff in his writ and also by section 34(2). The plaintiff seeks in relief (1) of the writ.

“(1) A declaration that the public celebration of the overthrow of the legally constituted government of Ghana on 31st day of December 1981¼is inconsistent with or in contravention of the letter and spirit of the Constitution 1992 more particularly articles 3(3), (4), (5), (6) and (7) and 35(1) and 41(b) thereof.”

Section 34(2)(a) also says that any act in respect of or “consequent upon” the “overthrow” of the government on 31 December 1981, cannot be enquired into for the purpose of granting any relief sought against the government. I have to decide whether the plaintiff’s case is “consequent upon” the 31st December coup. The whole basis or foundation of plaintiff’s case is that the 31st December coup, in other words the overthrow of the government in power on 31st December by the PNDC was unconstitutional, and that by virtue of the letter and spirit of article 3(3) and article 35(1) and 41(b) the celebration of 31st December as a public holiday as enacted in PNDCL 220 is also unconstitutional, null and void. I am firmly of the view that plaintiff’s case is caught by the clear and unambiguous provisions of section 34(2)(a) of the transitional provisions of the constitution.

The ordinary meaning of the words “consequent upon” according to the Oxford Advanced Learners Dictionary is “following as a consequence.” If the declaration of 31st December, which is really the coup of 1981, as a public holiday, as enacted in PNDCL 220, is not consequent upon the overthrow of the Limann’s government, I do not know what it is consequent upon.

We have to ask this question for the proper answer. What was the reason for declaring 31st December a public holiday? The answer is obvious, it is to commemorate the 31st December coup, which overthrew the Limann administration in 1981 by the PNDC. I do not think that this can seriously be challenged. The words “consequent upon” were used in similar provisions of the Constitution 1969. Section 13(3) of the transitional provisions of the Constitution 1969, like section 34(2) of the transitional provisions of the Constitution 1992 provided in exact words:

“13(3) For the avoidance of doubt it is hereby declared that no court shall entertain any action or take any decision or order or grant any remedy or relief in any proceedings instituted against the Government of Ghana or any person acting under the authority of the Government of Ghana, whether before or after coming into force of this Constitution or against any person or persons acting in concert or individually to assist or bring about the change in government which took place on the twenty-fourth day of February 1966, in respect of any act or omission relating to, or consequent upon

 (a) the overthrow of the government in power before the formation of the National Liberation Council; or

 (b) the suspension of the Constitution which came into force on the first day of July, 1960, or any part thereof; or

(c) the establishment of the National Liberation Council,… or

(d) the establishment of this Constitution.”

In the case of Donkor v Republic; Donkor v Republic (Consolidated) [1971] 1 GLR 30 the Supreme Court, (coram: Apaloo, Siriboe, Sowah, Enin, and Archer JJA) was called upon to give the interpretation of the phrase “consequent upon.” The facts are that after the February 1966 coup, two cars belonging to the plaintiff were seized on the orders of the NLC. In July the same year the NLC (Impounded Vehicles) Decree 1966 (NLCD 61) was passed with retroactive effect to give good title to people to whom these impounded vehicles had been sold, provided money was owed on these vehicles to the government or the Ghana Commercial Bank. The plaintiff brought an action against the government in the High Court for damages for wrongful seizure. The trial judge referred the matter to the Court of Appeal sitting as the Supreme Court under the transitional provisions of the constitution to determine whether on the proper interpretation of section 13(3) of the transitional provisions of the constitution (Schedule 1), the court had any jurisdiction to entertain the suit. Counsel for the government argued that since the seizures were traceable in one way or the other to the overthrow of the former government, they were the types of acts envisaged by section 13(3). But counsel for the plaintiff replied that the NLC could not have contemplated the seizure of the cars to assist or bring about the events contemplated by section 13(3).

It was held that the ordinary interpretation of the phrase “consequent upon” in section 13(3) of the transitional provisions of the constitution suggests that the seizures followed as a result of the coup and that the NLC must have considered the acts necessary for its own purposes. Proceedings instituted against the government before the promulgation of the constitution in respect of acts which were consequent upon the overthrow of the former government are forbidden by the peremptory provisions of section 13(3) of the transitional provisions of the constitution and therefore the High Court has no jurisdiction to entertain the suits which should be struck out.

In the result I find that the celebration of 31st December as a public holiday is “consequent upon” the overthrow of the government of Limann by the PNDC in 1981 and I so hold. Consequent upon this finding, section 34(2)(a) of the transitional provisions of the Constitution 1992 automatically comes into effect. I am of the view that even if I had found that the celebration of 31st December as a public holiday is unconstitutional as being inconsistent with any provision of the constitution and therefore null and void - still section 34(2)(a) would operate to oust the jurisdiction of this court from granting the relief sought by the plaintiff. Article 299 provides that:

“The transitional provisions specified in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary in this Constitution.”

By the effect of article 299, section 34(2)(a) of the transitional provisions clearly overrides the other constitutional provisions in certain circumstances, as stated in section 34(2). It is not for me to pass judgment on the merits and demerits of these provisions. My duty is to give judicial interpretation to the words as I find them. In this exercise I have derived much support form the case of Kwakye v Attorney-General [1981] GLR 944 in which the Supreme Court considered the effect of similar provisions in the transitional provisions of the Constitution 1979 as regards the effect of the ouster provisions. Sections 15 and 16 thereof are equivalent to sections 34 and 35 of the 1992 transitional provisions of that constitution. That was a case in which the plaintiff issued a writ in the Supreme Court for a declaration that he was never tried, convicted or sentenced by the Special Court established under AFRCD 3 and that the purported imprisonment of 25 years imposed on him, as published in the national press was an infringement of his fundamental human rights, inconsistent with chapter 6 of the Constitution 1979, void and of no effect.

The plaintiff also filed a statement of his case in accordance with rule 46 of CI 13. The Attorney-General however, did not file any statement of defence as required by CI 13 but instead moved to have the plaintiff’s action struck out in limine on the ground, inter alia, that on the facts as pleaded by the plaintiff himself, the AFRC took or at least purported to have taken, a judicial action against him, accordingly sections 15 and 16 of the transitional provisions of the Constitution 1979, particularly section 15(2) forbade the court from entertaining the plaintiff’s action or granting the plaintiff any remedy. In the court’s ruling in Kwakye v Attorney-General [1981] GLR 9, SC, the Supreme Court unanimously held that the defendant who was claiming that the jurisdiction of the Supreme Court had been ousted by the provisions of section 15(2) of the transitional provisions ought to provide factual basis for the application of those ouster provisions, and gave the defendant all opportunity notwithstanding his lateness to relate his version of the facts by filing a statement of his case within seven days. The defendant obliged and led both oral and documentary evidence with a view to showing that a judicial action or purported judicial action was taken against the plaintiff by the Special Court within the meaning of section 15(2) of the transitional provisions. On the evidence, the Supreme Court had to decide on the issue whether the court’s jurisdiction to grant the declaration sought by the plaintiff was ousted by the said ouster clause ie section 15(2) and (3).

It was held in holding (2), dismissing the plaintiff’s action (per Apaloo CJ, Archer, Charles Crabbe and Adade JJSC, Anin and Taylor JJSC dissenting):

“The effect of section 15(3) of the transitional provisions was to prevent non-compliance with “any procedure prescribed by any law” being used as a necessary pre-condition for the operation of the ouster clause in section 15(2). In other words, irregularities in the mode of trial would not prevent the ouster clause from having its intended effect.”

In that case the dissenting judges did not deny the intended effect of section 15(2) of the transitional provisions of the Constitution 1979. They found that since there was no “purported” action, section 15(2) did not apply to oust the jurisdiction of the court. Per Apaloo CJ at p 957:

“On the evidence, is it reasonable to conclude that the Armed Forces Revolutionary Council took or purported to take judicial action against the plaintiff? That immediately requires the correct interpretation of section 15(2) of the transitional provisions which we have already quoted. That section contains what lawyers call an ouster clause, ousting the normal jurisdiction of the courts. This particular ouster clause does not arise from an ordinary statute but is a constitutional provision. Moreover, article 217 of the Constitution 1979, gives the transitional provisions effect notwithstanding anything to the contrary contained in the Constitution.

In the exercise of the interpretative jurisdiction of this court, it is obvious that we should go beyond statutory interpretation since we are concerned with the most fundamental issues of our jurisdiction¼I think originality is required of us in the exercise of our original jurisdiction if we are to attend to the letter and spirit of the Constitution as the basic law of our land. That originality must, of course, be judicial and must not do damage to the plain and obvious meaning of the words used nor is it the province of this court to be astute to find some reason or other for depriving the constitutional provision of all effect clearly intended.”

Per Archer JSC at p 981:

“Considerations of want of jurisdiction, excess of jurisdiction, errors of law or fact on the face of the record have been rendered totally irrelevant by sections 15(2) and (3) and 16 of the transitional provisions. The effect of these sections can best be ascertained by taking into account the political antecedents of the present Constitution. Our political leaders had to negotiate with those who had seized power in connection with their handing over to a civilian government and the reinstatement of our liberties. These political facts are so notorious that they should not be judicially overlooked. The courts have been prevented from conducting any transillumination into the affairs of AFRC. And I think the matter should rest there.”

Per Charles Crabbe JSC at p 1031:

“A Constitution is something more than a mere Act of parliament. All the organs of government derive their authority and their sustenance from the Constitution. Thus a cardinal principle in the interpretation of a Constitution is to avoid a construction which renders meaningless or inoperative any provision of the Constitution. The same principle applies to the words of the Constitution. Every word must be construed to make it operative and not idle or nugatory. The express intent of the framers as disclosed by the words used must be respected. The purpose and intent of the framers as disclosed by the words used must be given their true signification. And so I must reiterate the clear words of article 217. It states clearly that: ‘The transitional provisions specified in the First Schedule to the Constitution shall have effect notwithstanding anything to the contrary contained in [the] Constitution.’ Among those provisions contained in the First Schedule which shall have effect notwithstanding anything to the contrary contained in the Constitution are sections 15 and 16 of the First Schedule. There is no ambiguity about the words of article 217 of the Constitution. Effect must be given thereto.”

Per Adade JSC at p 1038:

“Be that as it may, section 15(2) seeks to protect not only perfect judicial actions, but imperfect ones also, such as in my view, the “trial” described by Squadron Leader Segbefia. It was a purported trial; a judicial action purported to have been taken by the Armed Forces Revolutionary Council Special Court.

Accordingly section 15(2) operates to remove the action from the jurisdiction of the court. The action cannot be ‘questioned in any proceedings whatsoever ¼and it will be unlawful to grant any remedy or relief in respect thereof.’ Indeed having regard to the provisions of article 217 of the Constitution 1979, it will be unconstitutional to grant any such remedy.”

I associate myself completely with the above quoted passages contained in the opinions given by my learned and respected brothers as to the interpretation and effect of the ouster clauses in sections 15 and 16 of the transitional provisions of the Constitution 1979. They are perfectly right. For the important and relevant words

of section 13(3) of the transitional provisions of the Constitution 1979 I would substitute section 34 of the transitional provisions of the Constitution 1992. Section 34(2)(a) needs to be referred to again for convenience and emphasis. It provides:

“It is not lawful for any Court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the government of Ghana or any person acting under the authority of the government of Ghana, whether before or after the coming into force of this Constitution ¼in respect of any act or omission relating to, or consequent upon -

 (a) the overthrow of the government in power before the formation of the National Liberation Council the National Redemption Council, the Supreme Military Council, the Armed Forces Revolutionary Council and the Provisional National Defence Council.”

See also as to the effect of the transitional provisions contained in article 176 of the Constitution 1969 which was considered in the case of Sallah v Attorney-General (1970) 2 G&G 493 at 502, SC supra. Anin JA said:

“Article 176 provides that the Transitional Provisions specified in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary contained in this Constitution.” I would have thought that this article 176 should be held to override any inconsistent rules in the Transitional Provisions which deal with matters of a temporary or fleeting nature. In fact, article 177 ensures that in the next reprinting of the Constitution within five years, the whole of the Transitional Provision should disappear from the printed Constitution. Be that as it may, I hold that the reference to the Constitution in section 9(1) is cancelled out by the clear, unambiguous provisions of article 176. As in the case of an estoppel against estoppel the matter is put at large; and, in my opinion effect ought to be given to section 9(1) of the Transitional Provisions without reference to any contrary articles in the main Constitution.”

He dismissed the action.

In view of my earlier finding that the plaintiff’s case is consequent upon the overthrow of the Limann government by the PNDC in 1981, this case is automatically caught by the provisions of section 34(2)(a) of the transitional provisions and effect must be given to that section. This court is precluded from granting the remedy sought by the plaintiff.

I repeat, my duty is to interpret the Constitution 1992 as well as the transitional provisions in the First Schedule thereof together, and to uphold the constitution as I find it. I can only discharge this duty by refusing to grant the reliefs sought in the plaintiff’s writ for the reasons given above, namely that I do not find any patent or latent inconsistency between the relevant portion of PNDCL 220 and the articles specifically mentioned in plaintiff’s writ, or any other articles in the Constitution 1992. Even though it is my opinion that by a correct interpretation of the constitution, 31st December holiday is not tainted by unconstitutionality this does not mean that PNDCL 220 cannot be legislatively amended to exclude that date from the list in the schedule to the said enactment if such a result is desired by this or any other government. However in this case it would be very wrong to allow the achievement of this result through judicial rather than legislative means. This is the justice of the matter and I say so without fear or favour, affection or ill will.

It is for the above reasons that I disagreed with the majority judgement in this case.

HAYFRON-BENJAMIN JSC. In the American case of Gibbons v Ogden 22 US (9 Neat) 1, 6L Ed 23 (1824) Mr Justice William Johnson of the US Supreme Court commenced his opinion, contributed for that judgment, in words of such great felicity as represent my attitude to the hearing and determination of this constitutional matter in particular and generally with regard to my approach to the determination of all constitutional matters. Said the learned judge:

“The judgment entered by the court in this cause, has my entire approbation; but having adopted my conclusions on views of the subject materially different from those of my brethren, I feel it incumbent on me to exhibit those views. I have also, another inducement: in questions of great importance and great delicacy, I feel my duty to the public best discharged, by an effort to maintain my opinions in my own way.

In attempts to construe the constitution, I have never found much benefit resulting from the enquiry, whether the whole or any part of it is to be construed strictly or liberally. The simple, classical, precise yet comprehensive language, in which it is couched, leaves, at most but very little latitude for construction; and when its intent and meaning is discovered, nothing remains but to execute the will of those who made it, in the best manner to effect the purposes intended.”

On 29 December 1993 I cast my vote in favour of granting the amended declarations. I did so, and I believe my learned and respected sister and brethren did the same in their own ways after having seriously digested the arguments advanced by the parties. Again the novelty of the declarations sought was enough to excite such attention as would warrant the expression of views, which may be materially different but nevertheless reaching the same conclusions. My conclusions therefore agree with the majority of my learned and respected brethren but my reasoning may be entirely different.

In the Gibbons case, supra, the United States Supreme Court was considering the interaction between the Federal and State laws regarding inter-state commerce. It is not necessary for my purposes here to set out the facts. But the concurring judgment of Mr Justice Johnson to which I have referred postulated that it was not necessary for the court (the US Supreme Court) to construe constitutional provisions liberally or strictly. The court’s duty was simply to discover the intent and meaning and then to give effect to the will of those who made it - that is the will of the framers of the constitution - and so say I.

Within our municipality the matter has been put very succinctly in the words of Sowah JSC in Tuffour v Attorney-General [1980] GLR 637 at pages 647-648 when speaking of the language of the framers of the Constitution 1979 - which I say should apply with equal force to our attitude to the present constitution, that:

 “Its language, therefore, must be considered as if it were a living organism capable of growth and development. Indeed, it is a living organism capable of growth and development as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach of interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time.

And so we must take cognisance of the age-old fundamental principle of constitutional construction which gives effect to the intent of the framers of this organic law. Every word has an effect. Every part must be given effect.”

My duty therefore was to discover the “intent and meaning” of the presentations made to us in the present case with respect to our constitution and apply “a broad and liberal spirit” in its interpretation. There is no benefit in these modern times in applying a strict interpretation to modern democratic constitutions. So to do would mean that we forget that constitutions are made by men for the governance of men. The Constitution 1992 is therefore the sum total of our hopes, disappointments, experiences, aspirations and expectations as a nation. If we therefore forget the historical development of our constitution then we fail to recognise that “it is a living organism capable of growth.”

A serious examination of the pleadings in this case clearly shows that the statement of the defendant’s case virtually admitted the facts as stated in the plaintiff’s statement of case. True, the defendant’s case contained examples of what is called in pleadings, “confession and avoidance.” But it must be admitted that a “confession and avoidance” is not a denial. However, by that technique the defendant has raised certain matters of law, which will be dealt with in this opinion. For my part I do not consider it necessary to set out the facts of this case. Suffice it to say that some of my learned and respected sister and brethren have done so in their opinions.

The main issues for consideration by this court were (1) whether it was constitutionally permissible for the 31 December 1981 action to be celebrated as a public holiday and if so (2) whether state funds should be used in the celebration of that holiday. No difficulty arises with the second issue. For if it is constitutionally permissible to celebrate the 31st December public holiday then the State would be at liberty to furnish funds for its celebration. Yet again if it was not constitutionally permissible to celebrate 31st December as a public holiday by reason of the inconsistency of such celebration with any provision of the constitution then the plaintiff was entitled to the declarations sought. I need not remind myself that 31 December 1981 was the day on which the lawful civilian government established under the constitution of the third republic was violently overthrown.

In argument before us the Honourable Deputy Attorney-General, Mr Martin Amidu, conceded with characteristic frankness that “the action of 31 December 1981 was violent.” It must however, be said in his favour that he distinguished this day of violence from “the gains of the revolution” which had culminated in the framing and promulgation of the constitution of the fourth republic.

In my respectful opinion the Honourable Deputy Attorney-General was right in making the distinction between “the action of 31 December 1981” which was “violent” and the “gains of the revolution” which it must be conceded have given us the best democratic constitution which our country has ever had. The Honourable Deputy Attorney-General, however, missed the point when he referred to revolutions in other parts of the world as parallels to the 31st December revolution in this country. His references to the American and French revolutions not proving convincing enough, the Honourable gentleman more in jest than in exasperation referred to Guy Fawkes Day celebrated in the United Kingdom. Of course Guy Fawkes Day is not celebrated in the United Kingdom as a holiday.

I am not minded to discuss these revolutions referred to by the Honourable Deputy Attorney-General. It will however be enough to point out two important distinctions between these revolutions and “the action of 31 December 1981.” First no one who took part in those revolutions was granted an indemnity. Second save that these revolutions gave rise to the modern concepts of democracy none of them evolved a political philosophy, as is the case here in this country. The four pillars of the 31st December revolution are firmly rooted in our present constitution and are denominated “freedom, justice, probity and accountability.”

The defendant contends in paragraph 14 of his statement of case that:

“The President of the Republic who is also the Chairman and leader of the 31st December revolution and the members of Parliament of the NDC party to which the President belongs were elected on the party manifesto whose underpinning was continuity of the good works and values of the 31st December revolution.”

He is correct. The averment only goes to confirm my view that the “gains of the revolution” constitute a political philosophy, which remains to be tested under a multi-party democratic constitution. It makes no difference that the philosophy is being spearheaded by a particular party. As was said of early Christianity by Gamaliel, a Doctor of the Law:

“if this counsel or this work be of men, it will come to naught but if it is of God, ye cannot overthrow it; lest haply ye be found even to fight against God” (Acts 5: 38-39).

For my part I can conceive a clear distinction between this laudable political philosophy and the “action of 31 December 1981.”

In argument before us learned leading counsel for the plaintiff, Mr Peter Ala Adjetey referred us to the provisions of section 34 of the transitional provisions to the constitution which mentions 31 December 1981. Also the statement of the case for the defence referred to the Public Holidays Law 1989 (PNDCL 220) which mentions 31st December.

I believe I heard in conference a proposition that the plaintiff’s writ had failed to pinpoint specifically any relevant provision of the constitution, which was inconsistent with the proposed celebrations to mark the 12th anniversary of 31 December 1981 (revolution day). In the proponents’ view the plaintiff having so failed, it was out of court and the writ should be dismissed. Of course I disagree with such a formulation. Not only is it the adoption of a strict construction of the constitution, which I say is contrary to modern concepts of constitutional interpretation but also it ignores wholly the letter and spirit of the constitution. If I understand the case of the plaintiff correctly, it contends that the proposed celebration of the 31st December holiday runs counter to the letter and spirit of the constitution as illustrated by references to certain articles of the constitution and in particular to section 34 of the transitional provisions which has declared 31 December 1981 and other dates dies horribillis and for which certain classes of persons have been indemnified.

The defendant sought refuge in the Public Holidays Law and contended that 31st December like all public holidays in Ghana is a public holiday by the provisions of the Law. There could be no quarrel with that pleading if 31st December was a day unknown to the constitution. But, as it is, that date is mentioned in section 34 of the transitional provisions to the constitution. It is therefore wrong for the proponents of the strict interpretation or construction principle to say that the actions complained of do not offend against any article of the constitution. The transitional provisions to the constitution are part of the constitution. In fact the superior efficacy of the transitional provisions is clearly demonstrated by the provisions of article 299 of the constitution which provide that:

“The transitional provisions specified in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary in this Constitution.”

In Kuenyehia v Archer [1992-93] GBR 1260, I had occasion to consider briefly the intendment of article 299 of the constitution. Then I said that “there is a severe injunction placed on us by the constitution as to how wide we can extend our researches.” I concluded that the true intendment of article 299 of the constitution prevents the constitution and the transitional provisions from being read together. What I meant was that the transitional provisions have been superimposed on the constitution and if there was reference in the former affecting any matter then notwithstanding anything to the contrary in the latter the former shall prevail. I think the plaintiff demonstrated by its statement of case and argument advanced before us by learned counsel that it was properly before us. This court has said times out of number that it will not allow technicalities to becloud or stultify the need to do justice to the parties appearing before it. I think that in constitutional matters it is the clear duty of this court to gather the issues from the four corners of the statements of the case of the parties, discover the intent and meaning of the letter and spirit of the constitution or of any relevant article thereof and “to execute the will of those who made it, in the best manner to effect the purposes intended.”

It is clear from the plaintiff’s amended writ that it was invoking the provisions of article 2 of the present constitution. A similar provision in the Constitution 1979 came up for consideration by the Supreme Court in the case of Kwakye v Attorney-General [1981] GLR 9. Delivering the ruling of the court Apaloo CJ at page 13 of the Report said of article 2(1)(b) of that constitution:

“That the Constitution, 1979, clothes this court with jurisdiction to make the declaration sought by the plaintiff in a fit case is hardly in doubt ¼

It is precisely that complaint that the plaintiff makes. If we construe article 2(1)(b) alright, he is entitled to invoke the jurisdiction of this court as soon as the act complained of was committed or even threatened ¼ Indeed the ‘unconstitutional’ act may be one which demands the timeous intervention of this court.”

Article 2 of the Constitution 1992 like the same article in the Constitution 1979 deals with two situations. First where any enactment is inconsistent with or is in contravention of a provision thereof, and second, where any act or omission similarly is inconsistent with or in contravention of the constitution. In my respectful opinion any date mentioned in section 34 of the transitional provisions to the Constitution 1992 is to the extent of such mention inconsistent with the letter and spirit of the constitution and void.

By paragraph 15 of his statement of case, the defendant states as follows:

“The defendant maintains that what the plaintiff is seeking to do is to question the constitutionality and legality of the 31st December revolution and the events which gave rise to the revolution on 31 December 1981 which should not be entertained by the court by virtue of section 34 particularly subsection 2 of the transitional provisions scheduled to the Constitution.”

I think that the subsection, to which the defendant wanted to refer, was subsection (3) of section 34. Certainly I find no difficulty with the interpretation of subsection 2. The protection or indemnity granted to the classes of persons described in that subsection is limited to persons who individually or in concert did “assist or bring about the change in government” on these specified days in respect of any act or omission relating to or consequent upon the matters stated in the sub-subsections of that subsection.

I would ordinarily pass over that objection as being irrelevant. But with the knowledge that what the defendant meant was a reference to subsection 3, I think it is but fair that I give him the benefit of the correction and proceed to express myself on the quality of that averment.

Section 34(3) and (4) are in similar terms as section 15(2) and (3) of the transitional provisions of the Constitution 1979. The latter provisions found construction in Kwakye v Attorney-General [1981] GLR 944.

In that case Archer JSC said:

“The true meaning of section 15(2) appears to be that whenever the court is satisfied that the AFRC took or purported to have taken an executive, legislative or judicial action, that court shall not question the validity, the correctness, the fairness or the justice of the decision or action.” (Emphasis mine.)

Then Taylor JSC also said:

“Section 15(2) and (3) of the transitional provisions saved executive, legislative and judicial acts taken or purported to be taken by the Armed Forces Revolutionary Council or its lawful agents from being questioned in court.”

Yet again in the Kwakye case, supra, Taylor JSC said:

“I must remark that section 15(3) of the transitional provisions is clearly inapplicable as it merely saved procedural defects. Where the defects are of substantive legal requirements, they cannot be considered as procedure prescribed by law.”

The Kwakye case, supra, was a split decision, 5 to 2 the majority voting in favour of dismissing the case. But reading the opinions of their Lordships it is clear that they all appreciated that there was no carte blanche indemnity granted as generally understood by the popular and untutored world. Speaking for myself I think that there is no difficulty in the interpretation of section 34 of the transitional provisions. I have already delivered myself on my views on subsection 2 of that section. What appears not to commend itself to easy rendering is the expression “action” in subsection 3 of section 34 of the transitional provisions. In my respectful opinion the expression “action” within the intendment of that subsection means any function in the semblance of an executive, legislative or judicial process exercised or purported to have been exercised by any of the military regimes mentioned in that sub-section. I think it is only in this sense that the majority view can claim to be correct.

The plaintiff’s writ therefore cannot be caught by section 34(2) and (3) of the transitional provisions. If I read that section correctly, as indeed I have already so done, the sub-sections are clearly saying that all those dates mentioned therein were days when illegalities in the eyes of the constitution were committed against the established constitutional order, but that in the spirit and commitment of the Constitution 1992 to the “unity and stability of our Nation” (see the Preamble to the constitution) the perpetrators shall not be liable to civil action or criminal prosecution and no action or proceedings may be instituted against the lawful government for any such defaults.

By his statement of case the defendant contended that:

“whether or not public funds should be appropriated for the celebration of the 31st December revolution is a political question which is best left to the electorate which votes a government into power and a parliament which can by law decide what the public holidays in Ghana shall be.”

In argument before us the Honourable Deputy Attorney-General extended the ambit of the above-stated averment and submitted that his contention of the principle of non-justiciability on the grounds of the political question included the 31st December holiday itself. In his view the court had no jurisdiction to embark on the enquiry on hand as it was more competent for another arm of government to resolve. Further, that there were overriding public policy considerations which should prevent this court from adjudicating on the matter. In short on the grounds of a non-justiciable political question and on the ground of public policy we should decline jurisdiction.

The Deputy Attorney-General referred us to a number of English and United States cases which he submitted were in point and supportive of the stand which he had taken. I have since our judgment of the 29 December 1993 had opportunity to examine almost all the cases so cited and I am confirmed in my mind that my decision was right. The English cases dealt mainly with matters of public policy. The case which commends itself to my attention is Scranton’s Trustee v Pearse [1922] All ER 764. In this case the head-note reads:

“A trustee in bankruptcy sought under the provisions of the Gaming Act 1835 to recover from a bookmaker in respect of betting losses.

Held: Since the trustee was seeking to enforce a claim in respect of a debt which was a chose in action and, by the Bankruptcy Act 1914 section 18 was made part of the assets of the bankrupt which vested in the trustee, and since there was nothing in the doctrine laid down in Ex parte James (1874) 9 Ch App 609 which entitled the court to say that, in such a case as this, it was dishonourable or improper or unconscionable for the trustee as an officer of Court, to enforce it, the trustee’s position not being the same as that of the bankrupt if he had remained entitled to succeed.”

I could not immediately fathom the relevance of this case to the defendant’s presentation. But I find in the dictum of Warrington LJ at page 772-773 of the report perhaps something useful. Said the learned law Lord:

“All I can say is, if we are to decide cases depending on statute on any such footing as that, we are, as judges, not administering the law but administering that which has been vaguely referred to as the general policy of this country. That is not what we are here for. We are here to administer the law as it stands. It is the legislature, which has to do with the policy of the country, and not the judges, who administer the law. Therefore, in this case where, as I have said, the trustee is only exercising a right which is vested in him by statute, a right which he is entitled to exercise, and which I think I may go further and say he is bound to exercise, for the benefit of the creditors amongst whom the property is divisible, it would be wrong to interfere with that right by prohibiting the trustee from bringing the action which he is entitled to bring.”

By this and the other English decisions the Honourable Deputy Attorney-General was submitting that on matters of the administration of “the general policy of this country” judges are not fit to pronounce thereon. In the words of Warrington LJ “it is the legislature which has to do with the policy of the country.”

I think the Honourable Deputy Attorney-General misunderstands the context in which the dictum was pronounced. First the English, or should I say the British, pride themselves on not having a written constitution. Next parliament in Britain is supreme. Third, the judge’s duty is to apply the law. Clearly, commentary on any aspect of public policy by a British judge is uncalled for. As Lord Sterndale MR said in the same case at page 770 of the Report:

“I think all this court can do is to look at the Act of Parliament and see to the best of its ability what it said, and, having found that out, to obey it and give effect to it, and it ought not to consider whether, in the opinion of the court, the legislation is consistent with the general trend of opinion in the country.”

Not so in this country, we have a written constitution, which is the supreme law of the land. All laws and acts or omissions, which are inconsistent with or in contravention of any provision of the constitution are void and this court is empowered by the constitution to make declarations to that effect. In the area of public policy, it was the Honourable Deputy Attorney-General himself who referred this court to article 35(1) of the constitution. I think he meant to refer us to article 34(1). Chapter six of the constitution of which article 34(1) forms part deals with the directive principles of state policy. For the sake of brevity article 34(1) reads:

“The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society.”

In my respectful opinion nothing in the constitution precludes this court or indeed any court from pronouncing on matters of public policy. This court is therefore, even on the grounds of public policy entitled to decide whether the 31st December holiday is inconsistent with the letter and spirit of the constitution.

The final submission of the Honourable Deputy Attorney-General emanating from the averment contained in his statement of the defendant’s case was that the plaintiff’s case raised a non-justiciable political question. Simply put, if the matter in issue could be dealt with by any other arm of government and the constitution said so, then the court must decline jurisdiction. His contention was that since it was parliament, which under the doctrine of the separation of powers had the responsibility for controlling legislation it was fully within its authority to make a law abolishing 31st December as a public holiday. He did not however touch on the issue if the said legislation was claimed to be inconsistent with or in contravention of the constitution which arm of the state under the constitution had the authority to so declare. He however relied principally on the United States case of Baker v Carr 369, US 186 (1962).

In the Baker case, supra, the plaintiff, Baker, sought through the Federal courts to obtain the re-apportionment of the voting districts in the State of Tennessee on the ground that since the 1901 census the population had grown at different rates in different voting districts. Consequently there was unequal representation, which he considered unconstitutional. The State legislature as then composed would not pass a constitutional amendment to rectify the situation. The plaintiff lost his case in the lower Federal courts on the grounds of non-justiciability. He appealed. The issue before the US Supreme Court was whether the courts possess jurisdiction over a constitutional challenge to a legislative apportionment? The clear answer was “Yes”. I cannot do better than cite a short portion of the opinion of the court delivered by Justice Brennan, which illustrates the circumstances in which the issue of a political question may arise:

“It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identifies it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court’s undertaking independent resolution with expressing lack of the respect due coordinate branches of government or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence.”

Another United States case which amply illustrates the principle under consideration is Powell v McCormack 395 US 486 (1969). Mr Adam Clayton Powell Jnr, a negro was duly elected a representative to the 90th Congress of the United States. However, pursuant to a resolution of the House, he was not permitted to take his seat. He sued McCormack, the Speaker and other officials of the House claiming qualification in the United States Constitution, which the House specifically found he had met. The district court dismissed the complaint “for want of jurisdiction over the subject matter” and the Court of Appeals affirmed the decision of the district court. He appealed to the Supreme Court.

Before the United States Supreme Court the issue was whether the federal court was prevented from reviewing the congressional exclusion of a duly elected member by the prohibition against deciding political questions. The court answered in the negative. The defendant had contended that there was a “textually demonstrable constitutional commitment to the House of its adjudicatory power,” to determine Mr Powell’s qualifications. In answer the court said it had the duty to interpret the constitution in order to determine the existence and scope of such a power. In the view of the court Mr Powell was right in his contention that the House had no authority to exclude him or any person if he satisfied the membership requirements. It was the duty of the congress to determine the compliance with the qualifications set forth in the constitution, but the courts were not debarred from reviewing congressional judgments that extended beyond these qualifications.

Further the defendant submitted that they feared a potentially embarrassing confrontation between co-ordinate branches of the federal government and contended by that reason that the case presented a political question. But the court said that the alleged conflict, which such adjudication might cause could not justify the court avoiding its constitutional duty of interpretation.

The whole principle of a non-justiciable political question is an American formulation. While it may be relevant to our situation because it is a development from a written democratic constitution, I think there are so few parallels between the two constitutions on this principle that its application to our constitution must necessarily be limited.

By article 2 of our constitution this court has the exclusive jurisdiction to determine whether any statute, act or omission is inconsistent with or in contravention of any provision of the constitution. Next by article 130 this court has exclusive original jurisdiction in all matters relating to the enforcement or interpretation of our constitution. The original jurisdiction extends to all matters “arising as to whether an enactment was made in excess of the powers conferred on parliament or any other authority or person by law or under this constitution.” Again constitutional matters which arise in lower courts must be referred to this court - the Supreme Court - “and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.” It seems to me therefore that by the nature of our constitution the principle of a non-justiciable political question can only arise where the constitution expressly commits a particular responsibility to some arm of government. A clear example may be the power of the President to appoint Ambassadors under article 74(1).

In the present case the principal issues were whether the celebration of 31st December holiday was inconsistent with or in contravention of a provision of the constitution and (2) whether public money should be used in its celebration. No political question arose. The matter was firmly within the jurisdiction of this court.

Having thus discovered the “intent and meaning” of the framers of the constitution, who were largely composed of the representatives of the revolutionary organs, I think the public interest was best served by “executing the will” of the framers of the constitution in the best manner to effect the purposes intended.”

AMPIAH JSC. On 29/12/93, this court gave judgment for the plaintiff and ordered that 31st December of each year should not be celebrated as a public holiday. Reasons for the judgment were reserved. It was unfortunate that I could not agree with the majority of my brothers on the judgment. In my opinion the plaintiff’s claim should fail. I now proceed to give reasons for my dissent.