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(2) Amua-Sekyi, Aikins JJSC dissenting: Article 57(5) and (6) of the 1992 Constitution gave complete immunity in civil and criminal proceedings to the President while in office but the immunity was not absolute. However it did not confer immunity against prerogative writs and actions brought under article 2 of the constitution. Even so it would not be appropriate to proceed against the President as a defendant. Under article 57(1), the President was the Head of State and Head of Government in whom article 58(1) vested the executive authority of Ghana. In appointing district secretaries under section of 21(1) PNDCL 207 the President performed an executive function of the government under article 58(4), which provided that all acts of the government, should be expressed to be taken in the name of the President. The government of Ghana was thus personified in the President but he should not be made a defendant whenever an executive act of the government was challenged. The plaintiff ought to have proceeded against the Attorney-General on behalf of the Government of Ghana, as provided in article 88(5) of the 1992 Constitution. Sallah v Attorney General (1970) 2 G&G 493, SC, Tuffour v Attorney General [1980] GLR 637, SC referred to.

Cases referred to:

Institute of Patent Agents v Lockwood [1894] 4 AC 347, 63 LJPC 75, 71 LT 205, 10 TLR 527, 6 R 219, HL.

New Patriotic Party v Electoral Commission and another (No 2) [1992-93] GBR 4, SC.

Pretty v Solly (1859), 26 Beau 606, 33 LTOS 72, 44 Digest (Repl) 122.

R v Bridge (1890) 24 QBD 609, 59 LJMC 49, 62 LT 297, 54 JP 629, 38 WR 498, 72 LGR 405, 27 P & CR 180, 117 Sol Jo 912, CA.

R v Glamorganshire JJ (1889) 22 QBD 628, 5 TLR 636, DC.

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

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

Wood v Riley (1867) LR 3 CP 26

ACTION in the Supreme Court against the President of the Republic and the Attorney-General by the plaintiff challenging the appointment of district secretaries by the President.

Peter Ala Adjetey, with him Sam Okudzeto, Kwadwo Afram Asiedu, Philip Addison and William Addo for the plaintiff.

Obed Asamoah, Attorney-General, with him Martin Amidu and Adusa-Amankwah (Mrs) for the defendants.

AMUA-SEKYI JSC. On 16 September 1993, this court unanimously decided in New Patriotic Party v Electoral Commission and another (No 2) [1992-93] GBR 4, SC that elections which were then due to be held by the Electoral Commission set up under article 43 of the constitution for the purpose of approving nominations purporting to have been made by President Rawlings, the first-named defendant, under article 243(1) to the office of district chief executive would violate the constitution as the district assemblies established under the provision of section 3(1) of the Local Government Law 1988 (PNDCL 207) had no power to give such approval. The next day, it was announced that the first-named defendant had appointed those same persons as district secretaries under section 21(1) of Law 207. The plaintiffs say that this was unlawful and they have filed this writ to challenge his right to do so. The Attorney-General is named as the second defendant.

As formulated in their writ and statement of case, the complaint of the plaintiffs is that the appointments are inconsistent with, and a contravention of articles 242, 243, 246 and 247 of the constitution. They ask for a declaration to that effect, an order setting aside the appointments which were made and an injunction restraining the first-named defendant from making other such appointments in the future.

If the plaintiffs are right then there is a hiatus in the law for whereas by our decision the first-named defendant could not lawfully appoint district chief executives, he could not also appoint district secretaries.

Article 242 deals with the composition of district assemblies, article 243, with the office of district chief executive, article 246, with the term of office of members of District Assemblies and article 247 gives parliament power to make laws on the qualifications for membership and the procedures of district assemblies. Article 247 does not seem to be relevant to the matter before us. As at the time the appointments were made, indeed, when the writ was filed, parliament had not exercised the power conferred on it, there were no laws made pursuant to the article which could have been contravened. Articles 242, 243 and 246 formed the basis of the opinions we delivered in the earlier case and which resulted in the order of injunction restraining the Electoral Commission from holding the proposed elections. In my contribution, at page 15 I stated as follows:

“The defendant-commission ought to have known that they were embarking on an illegal and unconstitutional act. Law 207 gave members of district assemblies no power to give approval to the appointment of district secretaries by whatever name called; the office of District Chief Executive was created by the constitution, not Law 207; the composition of district assemblies under the constitution is different from that under Law 207; under the constitution the term of office of an assembly member is limited to four years, whereas that of the assembly members elected under Law 207 has already extended beyond four years.”

Our decision was that the assemblies set up under Law 207 could not lawfully perform the functions of those set up under the constitution. At the time we gave our decision, the assemblies were performing functions under Law 207 without any eyebrows being raised. So were the district secretaries appointed under that Law?

Perhaps, if an attempt had not first been made to appoint district chief executives - a position known only to the constitution - but instead, district secretaries had been appointed to fill vacant posts, the propriety of the action would not have been questioned. We are not, however, concerned with the sequence of events. Our task is to examine the action and see if it was lawful.

It will be recalled that although the Constitution of Ghana 1969 came into force on 22 August 1969, it was not until 9 July 1971 that the Local Administration Act 1971 (Act 359) was passed to bring the law regulating local government into conformity with the constitution. In the interval local government bodies continued to function under the authority of the Local Government Act 1961 (Act 54) as amended, and the Local Government (Interim Administration) Decree 1966 (NLCD 26), as amended. In 1979, there was a three-month interval between the coming into force of the constitution and the passing of the Local Government (Amendment) Act 1980 (Act 403). During this period the business of local government did not come to a halt. It continued under the authority of Act 359. Although the point was never tested in court, it was thought that in each case the new constitution had anticipated that there would be an interval during which the old local government structures would have to be retained and has permitted them to be so retained under the general provision which made the existing law part of the laws of Ghana.

In the 1992 Constitution, this provision will be found in article 11(4). However, in view of the marked differences between the old and the new local government set-up it would not be enough to refer to this provision since the existing law is required by clause 6 of that 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.” The same observation may be made of section 31(2) and 36(2) of the transitional provisions. The former states that “where anything is required or authorised by this constitution to be prescribed or provided for by or under an Act of parliament, it shall be deemed to be duly prescribed or provided for, if it has been prescribed or provided for by or under an Act, Decree or Law in force immediately before the coming into force of this Constitution.” The latter provides that “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.”

As with article 11, although sections 31(2) and 36(2) have the affect of saving Law 207 generally, they do not save those portions which are inconsistent with the provisions of the constitution. If one were to apply them to the office of district secretary one would have to regard it as having been abolished because whereas he is appointed by the executive without prior consultation with the people of the district, the district chief executive can take office only if his appointment is approved by a majority of not less than two-thirds of the members of the assembly present and voting at the meeting. Thus, even though under these provisions the entire body of PNDC Laws were validated this was only to the extent that they were not inconsistent with the constitution.

Then there is section 8(1) of the transitional provisions which states:

“A person who immediately before the coming into force of this Constitution held or was acting in an office in existence immediately before the coming into force of this Constitution, shall be deemed to have been appointed as far as is consistent with the provisions of this Constitution, to hold or act in the equivalent office under this Constitution.”

Again, this will not do, because although it permitted career and contract officers holding office in the public services to continue to hold the equivalent office under the constitution, political appointees like district secretaries could not take advantage of it to remain in office.

The reason is that by the terms of their employment they were required to vacate their offices whenever the appointing authority called upon them to do so. The office of district chief executive was not an “equivalent office” to which they could be deemed to have been appointed under the constitution. All that they could hope for was to be permitted to stay on as district secretaries until they were replaced by district chief executives.

It seems to me, however, that the present situation was anticipated as section 23(1) of the transitional provisions meets fully the objection taken by the plaintiffs. It reads:

“23(1) Until Parliament otherwise provides by law, existing laws regulating the operation of District Assemblies and other local authorities shall continue to regulate their operations.”

At the time the constitution came into force, one of the “existing laws” governing the operations of district assemblies was Law 207 section 21(1) of which, as already stated, gave the executive power to appoint district secretaries.

The provision is not qualified in any way. It stands alone and is not made subject to the provisions of the constitution. We do not have a repetition of the familiar phrase “in so far as it is not inconsistent with the provisions of this constitution.” Therefore, taking the provision as it stands, and giving effect to the ordinary meaning of the words used, section 23(1) means that until parliament enacted a law to regulate district assemblies in accordance with chapter 20 of the constitution, Law 207 was to continue in operation regardless of whether its terms were in conformity with the constitution. The provision is in recognition of the need for government business at the local level to continue while parliament deliberated on the matter and made the necessary changes in the existing law. The alternative would have been to incorporate the entire body of laws on local government into the constitution.

It is worthy of note that some of the persons appointed to the office of district secretary were already holding that office when the announcement was made. For these their re-appointment was

“…[t]o be possessed with double pomp

To guard a title that was rich before,

To gild refined gold, to paint the lily,

To thrown a perform on the violet,

To smooth the ice, or add another hue

Unto the rainbow …”

Looked at objectively, there was an urgent need to fill all vacancies in the office of district secretary on account of the role he is called upon to play under Law 207 in the local government set up. Section 3(1)(a) makes him a member of the district assembly; section 21(2), makes him responsible for the day-to-day supervision of the departments and organisations of the District; by section 12(1), he presides over meetings of the Executive Committee of the Assembly; section 8(2) requires him to present a report on the work of the Executive Committee to the Assembly at the beginning of each session, and to submit the recommendations of the Assembly on maters of national concern to the government; section 8(1) gives him the right to address the assembly when in session on the policies of the government; section 99 makes him the proper officer to receive notice of an intention to sue an Assembly; and, by section 112(1)(c), he is a member of the Co-ordinating Council of the region in which his District is situated. In short, he is not only an important officer of the district assembly but also a vital link between the assembly and the Central Government. His office is not one which can be left vacant for long.

It will be observed that under Law 207, the appointing authority of district secretaries was the Provisional National Defence Council in the exercise of the executive power it has taken for itself.

By section 28(2) of the transitional provisions, that power devolved on the President. After a most careful examination of the Law, I am unable to accept the contention of the plaintiffs that section 21 of Law 207 ceased to have effect upon the coming into force of the constitution. On the contrary, I am satisfied that until the Local Government Act 1993 (Act 462) was enacted on 24 December 1993, the whole of Law 207 continued to have full force and effect. It follows, therefore, that the power to appoint district secretaries was lawfully exercised on 17 September 1993.

Two other issues that were raised were whether the President was a proper defendant in the action and whether this court has power to issue an injunction directed to him. Dealing with these, the learned Attorney-General drew attention to article 88(5) and submitted that he alone was the proper defendant to the action brought by the plaintiffs. The said article reads:

“88(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.”

Arguing to the contrary, Mr Adjetey, counsel for the plaintiffs referred to article 57(4) and submitted that actions brought under article 2 of the constitution were specifically excepted from the immunity from suit granted to the President while in office. The said article reads:

“57(4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law. (Emphasis mine.)

Article 88(5) re-states the law as laid in the State Proceedings Act 1961(Act 51). Article 57(4) is also not new; it is a reproduction, word for word, of article 44(9) of the 1979 Constitution and substantially the same as article 36(6) of the 1969.

Article 36(6) came up for interpretation by the Court of Appeal sitting as the Supreme Court in Sallah v Attorney-General (1970) 2 G&G 493, SC, when the then Attorney-General argued that the act complained of being that of the Presidential Commission, which then exercised the executive powers of the President, the action could have been brought only against the commission, but that article 36(6) operated to give the commission complete immunity from suit. The court comprising Apaloo, Siriboe, Sowah, Anin and Archer, JJA held that the immunity granted to the President under article 36(6) did not extend to the government on whose behalf the act was done and that the Attorney-General had properly been made defendant in the suit. In his opinion, Archer JA said:

“Does this article mean that the acts of the President cannot be challenged in a court of law? I do not think so. In my view, the article confers on the President nothing more than procedural immunity. The article does not confer substantial immunity. It means that the official acts of the President can be challenged but he cannot be made a defendant in judicial proceedings or be made personally liable for the result of the proceedings.”

He then referred to clauses 7 and 8 of the article, which correspond to clauses 10 and 11 of article 44 of the 1979 Constitution and clauses 5 and 6 of article 57 of the 1992 Constitution, and continued:

“The policy behind article … 36(7) and 36(8) is too obvious. Is it proper that the Head of State should be dragged into the court-room while he holds office? The answer is definitely no. The dignity and the aura of respectability in which the office of President is enveloped must be preserved … the … reason for not suing the President in court is to preserve his dignity.”

Sowah JA also said:

“The President is the “fount of honour” and the person occupying the seat must do so in dignity and majesty … the constitution seeks to maintain that awe, dignity and majesty which surrounds the office and seeks to insulate it as far as possible from the humdrum of legal processes and even from the arena of political life …

Though the Presidency cannot be inducted into the legal arena, the Government of Ghana can be and is answerable for the lawful performance of the executive powers vested in the President.”

These statements reflect the position of the President in the 1969 Constitution. He was a figure-head, more like the Governor-General of the immediate post-independence period, who represented whoever happened to be King or Queen of the United Kingdom. He did not wield executive power; rather, he was required to act in accordance with the advice of the cabinet presided over by the Prime Minister.

All this notwithstanding, Apaloo JA recognised that Sowah and Archer, JJA had stated the law much too widely even for the “ceremonial” President of the 1969 Constitution. After stating that the government represented by the Attorney-General had been properly sued for the act of the Presidential Commission, he made this all-important observation:

In like manner, the immunity did not extend to proceedings for the removal from office of the President under article 47 which had also been excepted from the operation of article 36(6).

Article 57(4) of the 1992 Constitution, which I have already quoted, makes reference to article 2, clause 1(b) of which reads:

“2(1) A person who alleges that

(b) any act or omission of any person

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.”

If words have any meaning, the term “any person” must include the President of the Republic; and, if it does, then there is no reason why he cannot be called upon to answer for alleged infringements of constitutional provisions. I venture to say that it would be a breach of the audi alteram partem rule not to make him a party to such an action.

Although the President is the first citizen, he is not above the law. The medieval fiction that the “King can do no wrong,” which the sophist interpreted to mean that if the action was wrong then it was not that of the King, has no place in a republican setting which prides itself on all citizens being equal under the law and therefore obliged to act in conformity with it. We recognise that an executive President being the most powerful person in the State is the one who has the greatest capacity for wrong-doing. We do not need a Petition of Right or a notional defendant like the Attorney-General before we can exercise our democratic right of calling an erring President to order under article 2 which not only commands him to obey any order or direction this court may give, but also makes his failure to obey any order or direction a ground for his removal from office.

Three examples may be given. First, article 106(8), (9) and (10) of the constitution lay down that if the President exercises his right to refuse to assent to a bill passed by parliament and, having reconsidered the bill, parliament passes it by a resolution supported by the votes of not less than two-thirds of all the members of parliament, the President is required to assent to it within thirty days of the passing of the resolution. If in such a case the President refuses to assent to the bill, an action may be brought against him as defendant under article 2 for a mandatory injunction requiring him to perform his constitutional duty.

The second example is taken from a real-life situation which occurred in a certain South American country whose democratic structures are a fragile as our own. There, a President who found that his wishes were being thwarted by the elected congress, staged a coup d'état with the aid of the military and proceeded to rule by decree. I am satisfied that if such a situation were to arise in this country, and there was hope of resistance, an action may be brought against the President as the defendant under article 2 for a declaration that his act is unlawful and a breach of the constitution, as well as for consequential orders, thus paving the way for his impeachment. It would be idle to make the Attorney-General who, for all one knows, may have opposed the actions of the President defendant in such an action.

My third example comes from our own continent. Not long ago, the military dictator of an African country decided that he would rather be an emperor. He dressed himself up in the uniform of a footman in Napoleon’s army and crowned himself at a public ceremony! Should we in this country ever have the misfortune of electing a megalomaniac to the office of President, we would be well within our rights in bringing an action against him personally under article 2 if he should exhibit conduct likely to lead to the overthrow of the constitution.

In the light of the foregoing, I am of the opinion that whenever it is alleged that the President has by himself or any agent acted in a manner inconsistent with or in contravention of a provision of the constitution, an action may be brought against him under article 2 for a declaration to that effect, and for consequential orders, including an injunction. President Rawlings was, therefore properly made a defendant in this suit. However, on the merits the action fails, and it is hereby dismissed.

ABBAN JSC. I would like to express my views about the issue as to whether the President is amenable to proceedings. This issue was not at all vital or important to the decision in the case. But since it was raised and argued I think an opinion should be expressed on it.

Article 57(5) and (6) of the 1992 Constitution give complete immunity in civil and criminal proceedings to the President while in office. But it seems to me that the immunity which article 57 (4) of the constitution grants to the President is not absolute. That is, article 57(4) does not confer substantive immunity in so far as prerogative writs and actions brought under article 2 of the constitution are concerned.

Thus, official acts of the President can be challenged either by of prerogative writs or actions in the Supreme Court under article 2 of the constitution. However I am of the view that in such cases it would not be right to make the President a defendant. By virtue of article 57(1) of the 1992 Constitution, the President is not only the Head of State but also the Head of Government; and article 58(1) vests the executive authority of Ghana in the President. So whenever the President carries out executive duties vested in him by the constitution or by any other law, he does so as the government of Ghana.

In the circumstances, the President by appointing district secretaries under section 21(1) PNDCL 207 was performing an executive function of the government. It was an executive act of the government of Ghana taken in the name of the President by virtue of article 58(4) of the constitution which provides that:

“Except as otherwise provided in this Constitution or by law, not inconsistent with this Constitution, all acts of the government shall be expressed to be taken in the name of the President.” (My emphasis.)

It is therefore obvious that the government of Ghana is personified in the President. This does not mean that the President should be made a defendant whenever any executive act of the government done in his name is being challenged in court proceedings. In the particular circumstances of the present case, the suit herein should be brought against the Attorney-General only as defendant for and on behalf of the government of Ghana, in accordance with article 88(5) of the constitution. That is, the Attorney-General is the proper defendant and not the President.

It is not in every case that the President of Ghana should be dragged to the court-room. The office of the President deserves respect. The dignity and the aura of respectability in which the office of the President is shrouded ought to be maintained and preserved: see Sallah v Attorney-General (1970) 2 G & G 493, SC. The very issue raised in the present suit by the Honourable Attorney-General, was also raised by the then Attorney-General in that case.

It must be observed that the provisions made in article 57(4), (5) and (6) of the 1992 Constitution are identical to the provisions in article 36(6), (7) and (8) of the 1969 Constitution. Those provisions were put to test in the Sallah case, and the majority (Apaloo, Sowah and Archer JJA) held that the President had no substantive immunity; and that although his official acts could be challenged in court by prerogative writs, the Attorney-General was the proper defendant in such proceedings. In the course of his judgment Archer JA said:

“The policy behind article 36(6), 36(7) and 36(8) is too obvious. Is it proper that the Head of State should be dragged into court-room while he holds office? The answer is definitely no. The dignity and the aura of respectability in which the office of the President is enveloped must be preserved … In Ghana the sensible reason for not suing the President in court is to preserve his dignity …

In the present case, the plaintiff by virtue of article 106 of the constitution has come to the Supreme Court for the interpretation of section 9(1) of the Transitional Provisions which has been put into effect by the Government of Ghana in such a way as to terminate his appointment. As the Attorney-General, by article 68 of the constitution, is the principal legal adviser to the Government, it is proper and fitting that he should appear in this suit as defendant for and on behalf of the Government of Ghana.” (My emphasis.)

I entirely agree with this opinion. I should observe that Sowah JA expressed similar opinion in the course of his judgment where he said:

“The Attorney-General does not deny that an action is maintainable at law against the Government of Ghana; he argues, however that the act complained of was one executed by the President and that act cannot be challenged in these courts, no matter the nature and scope of the act. I am unable to accept this. The short answer is that whenever the President carries out the executive duties vested in him by the Constitution, he does so as the Government of Ghana…

The President is the “fount of honour” and the person occupying the

seat must do so in dignity and majesty … So it is, that the Constitution seeks to maintain that awe, dignity and majesty which surrounds the office and to seeks to insulate it as far as possible from the humdrum of legal processes. … In him is personified the Government of Ghana.

Though the Presidency cannot be inducted into legal arena, the Government of Ghana can be and is answerable for the lawful performance of the executive powers vested in the President.” (My emphasis.)

I must also refer to what Apaloo JA stated at page 508 of the report. He said:

“It ought, however, to be borne in mind that the immunity from legal proceedings granted to the President in the performance or purported performance of his constitutional or other legal duty is not absolute. His immunity from court proceedings does not extend to proceedings taken against him by any of the prerogative writs. It would follow from this that if the President failed or neglected to perform a public duty imposed on him by law, a person affected by his failure can compel him by the prerogative order of mandamus … In holding that this action was properly brought against the government, I share the unanimous opinion of my brothers. If that action was properly brought, it cannot be doubted that it was properly brought against the Attorney-General on its behalf. In my opinion, the preliminary objection was an unmeritorious one and ought to have been, as indeed was dismissed.” (My emphasis.)

There is therefore no doubt that the official acts of the President can be questioned in the Supreme Court under article 2 of the constitution and also through the use of prerogative writs. But as I have already stated, in such cases, as in the present one, only the Attorney-General should appear in the suit as defendant for and on behalf of the government or the state for that matter, as was done in the Sallah case and also in Tuffour v Attorney-General [1980] GLR 637, SC.

In Tuffour case which was cited by both counsel in the course of their arguments, the plaintiff, Tuffour, in his second relief sought a declaration that:

“The purported nomination by the President of the Republic of Fred Kwasi Apaloo for approval by Parliament of his appointment as Chief Justice of the Republic and member of the Supreme Court and his purported vetting and rejection by Parliament as such on 16 August 1980 were each acts effected in contravention of the Constitution and laws of the Republic and were therefore null and void and of no effect.” (My emphasis.)

It could be seen that it was the acts of President Limann and parliament which Tuffour challenged by invoking the original jurisdiction of the Supreme Court under article 2 of the 1979 Constitution and which article was identical in terms with article 2 of the 1992 Constitution. Incidentally, the present plaintiff also brought its action under article 2 of the 1992 Constitution. But in Tuffour’s case, President Limann was not made a party to the suit, even though it was his acts which were called in question in that suit. It was the Attorney-General, as the principal legal adviser of the government, who was made a defendant. That was the right procedure.

The plaintiff, in the present case, did the right thing by suing the Attorney-General. But it was improper to join President Rawlings as a defendant. This is one of the situations where it can be said that the President had procedural immunity.

However, I agree with my brother Amua-Sekyi JSC that the plaintiff's action must be dismissed for the reasons which he has lucidly set out in the lead judgment.

AIKINS JSC. I am in entire agreement with the reasoning and conclusion of the lead judgment just read by my learned brother Amua-Sekyi JSC. I do not have much to contribute in support of the judgment.

The plaintiff is complaining that the appointments of district secretaries made by the 1st defendant as President on 17 September 1993 are inconsistent with, and in contravention with the constitution, specifically articles 242, 243, and 247, and that these appointments should be set aside by this court. Further the plaintiff is asking for an order of injunction prohibiting and restraining the President from nominating, appointing or electing district secretaries to perform the functions set out in the constitution to be performed by district chief executives otherwise than as laid down in the constitution.

The functions of the district chief executive as laid down under article 243(2) of the constitution are to:

a) preside at meetings of the Executive Committee of the Assembly;

b) be responsible for the day-to-day performance of the executive and administrative functions of the District Assembly; and

c) be the chief representative of the Central Government in the district.

He is also a member of the assembly by virtue of article 242(c). All these functions were and are performed by the district secretary under various provisions of PNDCL 207, and he is also a member of the district assembly - see sections 12(1), 21(2), 8(2)(b) and 3(1) (a) of the Law. There is therefore no need for this court to issue an order restraining the President from asking the district secretary to perform the functions of the District Chief Executive since both officers perform the same functions in the district assembly either under article 243(2) or under Law 207.

The language of section 23(1) in the transitional provisions is clear and unambiguous. It says:

“23(1) Until Parliament otherwise provides by law, existing laws regulating the operation of District Assemblies and other local authorities shall continue to regulate their operations.”

The subsection stands out without any qualification whatsoever. It is not made subject to any provision of the constitution, unlike article 11(6) and sections 31(1) and 36(2) of the transitional provisions where we find repeated use in the sections of the expressions “with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it (ie the law) into conformity with the constitution” and “in so far as it is not inconsistent with the constitution.” These expressions are general provisions as against the specific provision of section 23(1) which appears to have been put in for transitional arrangements, and which, in my view did not cease to have effect on the coming into force of the 1992 Constitution.

The law with respect to general and particular or specific enactments is trite and is to the effect that where a particular of specific enactment and a general enactment appear in the same statute, and the general enactment, taken in its most comprehensive sense, would override the specific enactment, the specific enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply - see Pretty v Solly (1859), 26 Beau 606 at p 610. This is an application of the maxim generalia specialibus non derogant. This special provision stands as an exceptional proviso upon the general. It is only where it appears from a consideration of the general enactment in the light of prevailing circumstances that parliament or in the case of a constitution its framers, intended only to establish a rule of universal application, that the special provision must give way thereto; see R v Glamorganshire JJ (1889) 22 QBD 628 and R v Bridge (1890) 24 QBD 609. But in the instant case the situation is different.

In view of my thinking above, I do not seem to agree with the learned acting Attorney-General that section 23(1) should be read together with section 31(2) of the transitional provisions. The language of section 31 is clear and unambiguous. Subsection (1) is the operative clause, and it clearly states that the existing law shall, as from the coming into force of the constitution, have effect with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the constitution. Subsection (2) is put in parenthesis for the avoidance of doubt only, and without prejudice to the general effect of subsection (1). Subsection (1) therefore, in my view, qualifies subsection (2).

The learned acting Attorney-General thinks there is inconsistency between the two subsections and would like subsections (2) to be taken out and read together with section 23(1). True, it is sometimes said that where there is an inconsistency between two provisions in the same statute, the latter prevails (see Wood v Riley (1867) LR 3 CP 26) but this is doubtful. It seems the better view is that the courts must determine which is the leading provision and which is the subordinate provision, and which must give way to the other, see Institute of Patent Agents v Lockwood [1894] 4 AC 347, HL at page 360. Subsection (2) of section 31 must under the circumstances give way to subsection (1). I would therefore not agree that subsection (2) should be singled to and read with section 23(1).

As to the argument that the district secretaries should have been appointed by the PNDC under section 21(1) of Law 207, it is clear from section 29(3) of the transitional provisions that the President has power to make the appointments as he did. The subsection runs thus:

“A reference to the Provisional National Defence Council in any enactment in existence before the coming into force of this Constitution, where the reference relates to an executive function of the Council shall be construed as a reference to the President.”

The exercise of this power to appoint is clarified by section 10(1) of the Interpretation Act 1960 (CA 4) which states that “where an enactment confers a power or imposes a duty the power may be exercised and the duty shall be performed from time to time as occasion requires.” And section 12(1) of the same Act emphasises that the power to appoint includes (a) power to remove or suspend or (b) to reappoint or reinstate the person involved.

The issue whether the 1st defendant is amenable to these proceedings under the 1992 Constitution has been well dealt with in the lead judgment, and I agree with my learned brother’s conclusion. The provision in article 57(4) of the constitution that the President is not liable to proceedings in any court for the performance of his function, or for any act done or omitted to be done, or purported to be done in the performance of his functions, or for any act done or omitted to be done, or purported to be done in the performance of his functions under the constitution is without prejudice to the provisions of article 2 of the constitution and the operation of the prerogative writs. Article 2(1)(b) makes the President personally liable for any act done which is inconsistent with, or in contravention of a provision of the constitution.

The plaintiff brought this action under article 2 and, in my view, the proper person to be sued is the President who make the appointments complained of, and he cannot hide behind the Attorney-General because whatever orders that are to be issued are to be directed to him. The President is not above the constitution - he is subject to it.

He is also subject to the prerogative writs. In other words, the orders of mandamus, certiorari and prohibition will lie against him because he has public duties to perform, and that performance can be compelled against him under article 57(4) of the constitution. By article 58(1) the executive authority of this country vests in him to be exercised in accordance with the constitution. It is therefore in order that he should be made a defendant in the suit as well as the Attorney-General who is, by virtue of article 88(1) the principal legal adviser to the government, for and on behalf of the government of Ghana. See Sallah v Attorney-General (1970) 2 G & G 493, a decision of the Court of Appeal sitting as the Supreme Court, where a similar holding was made.

Clauses (1) and (2) of article 2 gives this court jurisdiction to make declarations and orders against any person, including the 1st defendant as the President when any action is brought before this court under article 2. In making such orders the court has discretion to consider any application made by a party appearing before it. And under clauses (3) and (4) any person (including the President) to whom such orders or directions are addressed, is enjoined to obey and carry out the terms of the orders or directions under pain of being prosecuted for high crime, and in the case of the President (or his Vice) his action constitutes a ground for removal from office under the constitution. The 1st defendant as President of the Republic of Ghana is therefore, in my judgment, amenable to an order of injunction made under article 2 of the constitution.

Subject to the qualification above, the plaintiff's action fails, and judgment must be given for the defendants, and it is hereby held that the President is entitled to make the appointments he made on 17 September 1993.

BAMFORD-ADDO JSC. I have also had the privilege of reading the judgment of my brother Amua-Sekyi JSC and I agree with his final conclusion that this action should be dismissed. I wish however to register my own views and reasons.

The plaintiff sued for the following reliefs:

“(1) A declaration that the appointments of District Secretaries for the various districts made by the President on 17 September 1993, are inconsistent with and a contravention of the Constitution 1992, specifically articles 242, 243, 247.

(2) An order setting aside the said appointments.

(3) An order of injunction prohibiting and restraining the President from nominating appointing or electing District Secretaries to perform the functions set out in the constitution to be performed by District Chief Executives otherwise than as laid down in the constitution.”

According to the plaintiff the President on the 17 September 1993 appointed district secretaries for various districts under section 21 of the Local Government Law 1988 (PNDCL 207) and that these appointments were unconstitutional as the President had no power under the said Law to make those appointments. The plaintiff submitted that upon the coming into force of the 1992 Constitution on 7 January 1993, PNDCL 207 ceased to have effect and was suspended by article 243 of the constitution, so that appointments made under that Law were unconstitutional and null and void and of no effect. The defendants however contended that the appointments were properly made under the authority of section 21 of PNDCL 207 as well as section 23(1) of the transitional provisions of the constitution. Section 21(1) of PNDCL 207 stated thus:

“There shall be a District Secretary for each District who shall be appointed by the Council.

2 The District Secretary shall be responsible within the frame work of national policy as determined by the Council, for the day to day supervision of the departments and organizations of the District.”

The constitution however in article 243(1) provides for a district chief executive who shall be appointed by the President with the prior approval of not less than two-thirds majority of members of the assembly present and voting at the meeting. As can be seen the method of appointing a district secretary and a district chief executive are clearly different. When appointing a district chief executive the method under article 243 must be applied, not under section 21(1) of PNDCL 207. However section 32(1) of the transitional provisions of the constitution provides:

“23(1) Until Parliament otherwise provides by law, existing laws regulating the operation of District Assemblies and other local authorities shall continue to regulate their operations.”

According to the defendants this means that until parliament makes laws for regulating operation of District Assemblies, Law 207 regulating the operation of the existing District Assemblies shall continue to operate. That therefore the President can appoint district secretaries to the existing District Assemblies under section 21(1) of PNDCL 207. The plaintiff however argued that since the 1992 constitution has superseded PNDCL 207 and the two enactments are in conflict, they cannot by virtue of article 1 stand together and article 243 must prevail over section 21(1) of PNDCL 207 despite the provisions of section 23(1) of the transitional provisions of the constitution, and article 299 thereof. I am unable to agree with the stand of the plaintiff. Article 299 states that the provisions of the transitional provisions shall have effect notwithstanding anything to the contrary in the constitution, so that even if there is a conflict between article 243(1) and 21(1) of PNDCL 207, section 23(1) of the transitional provisions of the constitution prevents PNDCL 207 being declared null and void or inconsistent with the constitution till parliament makes new laws. Further if PNDCL 207 is not to be held inconsistent with the constitution, particularly article 243(1), then by virtue of the provisions of section 36(2) of the Transitional Provision there is the authority for the continued operation of PNDCL 207 including section 21(1) thereof. Section 36(2) of the transitional provisions states:

“Notwithstanding the abrogation of the Proclamation referred to in sub-section (1) of this section, 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.”

Therefore PNDCL 207 continues to remain the law regulating the operations of the existing District Assemblies and section 21(1) thereof being part of PNDCL 207 can be invoked to appoint district secretaries. If it were not so the existing district assemblies cannot function or operate, since it is the district secretaries who under section 21(2) of PNDCL 2007 quoted above, are responsible for the supervision of the day-to-day functioning of these assemblies.

The plaintiffs stand, it seems to me, cannot be right as, to interpret section 23(1) as suggested by counsel would frustrate the intention gathered from that section namely to keep the district assemblies running until parliament makes new laws regulating them.

The appointment of district secretaries by the President was not unconstitutional or null and void for the above reasons.

The defendant in paragraph 10 of the statement of defence stated:

“10 The defendants contend that the 1st defendant is not amenable to any civil or criminal proceedings either to his person or his office in the execution of the executive authority vested in him under article 58 of the constitution or in the exercise of his functions as President of the Republic of Ghana.”

Both plaintiff and defendants argued this point in court. Whereas the defendants argued that the President is not a proper person to be sued personally but that it is only the Attorney-General who can be sued, the plaintiff contended that since article 2 permits any person to bring an action to the Supreme Court for any breach of the constitution the President can be sued personally as was done in this case, because he made the appointments himself. According to article 57(4):

“Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office be liable to proceedings in any court for the performance of this functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law.

(5) The President shall not, while in office as President be personally liable to any civil or criminal proceedings in Court.”

This means that under article 57(4) the President can be sued in respect of cases falling under article 2 or by way of prerogative writs for acts or omissions in respect of the performance of his functions as President. But then article 88(5) imposes on the Attorney-General the duty of conducting or defending civil cases on behalf of the state and “all civil proceedings against the state shall be instituted against the Attorney General as defendant.”

It is important that articles 57 and 88 of the constitution should be read together. If the President according to article 57 is the Head of State and has acted in his official capacity in appointing district secretaries, which is alleged to be unconstitutional, it is not the Head of State himself who should be sued but the Attorney-General as directed in article 88(5). If the President while in office cannot even be personally liable for any civil wrongs how can he be liable personally for acts performed by him in the exercise of executive functions? The reason for the immunity provided under article 57 is to preserve the dignity of the high office of the Head of State. See paragraph 34 of the Report of the Committee of Experts (Constitution) on Proposals for a Draft Constitution of Ghana, at page 23:

“Immunities

34. The Presidential immunity from legal proceedings provided in article 44 clause 9 - 11 of the 1979 Constitution of Ghana is meant to preserve the dignity of the office of the President, but should not preclude proceedings against the state in appropriate cases. The proper procedure in such cases is to institute proceedings against the Attorney-General, as the official representative of the Republic.”

If the plaintiff is right in his view that it is the President himself who should be sued personally, I venture to ask why the Attorney-General was joined as second defendant? The State acts through officers, like the President who is said to be the Head of State and consequently even if official acts of the President can be questioned when it becomes necessary to sue the State, it is the Attorney-General who is constitutionally designated to be sued in accordance with article 57(5). Consequently it is my view that, the defendants’ objection to the joining of the President JJ Rawlings to this particular suit is correct and should be upheld. In the result the plaintiff cannot succeed in his claim and is not entitled to the reliefs sought.

AMPIAH JSC. I have had the privilege of reading before-hand the judgement of my brother Amua-Sekyi JSC. I agree with him. I however have this observation to make regarding proceedings brought against the President.

The action was brought under article 2 of the constitution, article 57(4) of which exempts the President from being brought before the court personally for acts done in the exercise of his functions under the constitution, excludes actions brought under article 2 and also proceedings involving the prerogative writs. Any person who alleges that there has been an executive, legislative or judicial act which is inconsistent with or in contravention of the provisions of the constitution may bring an action against any person (including the President) who is alleged to have done the act or authorised the doing of that act. That action could be instituted against that person alone or jointly with the Attorney-General. It would not matter at that stage whether the action is meritorious or not. Such a joinder

would not invalidate the action. The court in such proceedings determines the issues or questions in dispute so far as they affect the rights and interest of the person who are parties to the proceedings.

In both Sallah and Tuffour cases, referred to earlier by my senior brothers in their judgments, the problem was about the proper persons to be sued in those cases. A majority of the judges in both cases expressed the view that even though the President had no absolute immunity from court proceedings, in the words of Archer JSC in the Sallah case:

“…the article confers on the President nothing more than procedural immunity … It means that official acts of the President can be challenged but he cannot be made a defendant in judicial proceedings or be personally liable for the result of the proceedings.”

Apaloo JA in the same Sallah case was of the view that with regard to the President:

“His immunity from court proceedings does not extend to proceedings taken against him by any of the prerogative writs …”

“The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State, and all civil proceedings against the State shall be instituted against the Attorney-General as defendant”

The President as “the Head of State and Head of Government” is one of such persons envisaged under article 88(5).

The action before the court is not one of the prerogative actions. The issue of suing the President personally would have to be reconsidered depending upon the acts complained of, for example, where the President is alleged to have acted outside the constitution or acts on a frolic of his own.

In the present action, my opinion is that the President cannot be sued in his name. The Attorney-General who already has been made a defendant in the proceedings in my view, is the proper person to be sued. I hold that the President has not been properly joined in the action. I would in the circumstances strike out his name from the writ as a party. I also agree that the claim by the plaintiff be dismissed.