constitutional law - 1992
Constitution - Article 289 -
invoking the original
jurisdiction of the Supreme
Court -
Public
interest - Whether or
not the the Constitution Review
Commission of Inquiry
Instrument, 2010, C.I. 64 is
null, void and of no effect -
Whether or not it contravenes
the letter and spirit of Article
289(1) of the 1992 Constitution
- Whether or not that the powers
granted to the President under
Article 278(1) to appoint a
commission of inquiry does not
include the power to establish a
commission to review and propose
amendment bills to the
Constitution - Whether or not
Parliament is the only intuition
that can amend the constitution.
HEADNOTES
The Chapter 25 entrenched
provisions of the 1992
Constitution, thus sanctions
alteration of constitutional
provisions effected in strict
conformance, with the Chapter
25, titled “Amendment of the
Constitution”, that is, the
processes and procedures
carefully circumscribed under
it.The legitimate question is
what triggered this instant
constitutional litigation?
Invoking the powers invested in
him pursuant to article 289 of
the 1992 Constitution, the
President set up a ten member
Constitution Review Commission
(CRC), under the Constitution
Review Commission of Inquiry
Instrument, 2010, C.I. 64. In
June 2012, the Government issued
a white paper on the report of
the CRC, in which most, if not
all of the recommendations were
accepted by the President.
In October 2012, the Government
set up yet another body, a
five-member Constitution Review
and Implementation Committee
(CRIC), which according to the
Plaintiff’s statement of case
was, “to implement, in strict
compliance with chapter 25 of
the Constitution on “Amendments
to the Constitution,” the
recommendations that have been
accepted by Government. The CRIC
is said to have taken a number
of actions, fuller details which
will shortly be set out, and
which in the view of the
Plaintiff are clearly
inconsistent with Parliament’s
role as the legislative
authority exclusively vested
with power to effect
constitutional amendments.
HELD :-
(a)
Finally, the President’s
constitutional authority under
article 278(1) involves the
exercise of discretionary power.
I find no breaches or violations
of constitutional or other legal
requirements proven in the
exercise of this lawful
authority. Thus, once the
President, in the lawful
exercise of his discretionary
authority under article 278 (1),
was satisfied that the work of
the CRC, were matters of public
interest, was well- suited to be
addressed by a Commission of
Inquiry, I do not think I can
legitimately question the
exercise of that executive
discretionary decision in the
manner and terms requested, in
much the same way that in our
jurisprudence, the exercise of
judicial discretionary authority
cannot be interfered with,
except in those extreme or
exceptional cases, which have
been carefully circumscribed by
the decisions of this court. The
setting up of the CRC and
subsequently the CRIC, to fully
implement in strict accordance
the recommendations of the CRC,
in my respectful view, passes
the constitutionality test.
(b)
To conclude, I am of the
considered opinion that the
steps taken by the President so
far, i.e. the appointments of
the CRC and the CRIC, can only
be said to be preparatory and
has not in any way interfered
with Parliament’s exclusive
legislative power granted by
Article 93(2) and exclusive
power to amend the Constitution
under article 289. I will
therefore dismiss plaintiff’s
claim, save the first part of
relief 5 and the entirety of
relief 7.
(c)
Turning to the claim
before us for determination, I
am of the view that as the
question on what particular
provisions of the constitution
should be amended is purely a
matter for Parliament to decide,
it does not appear that the
letter and spirit of the
constitution on which this
action has been planked has been
violated in any manner to
warrant the exercise of the
jurisdiction conferred on us
under article 2(1) of the
constitution.
(d)
where a
power is given to a person or
authority to do or enforce the
doing of an act or a thing, all
such powers shall be deemed to
be also given as are necessary
to enable that person or
authority to do or enforce the
doing of the act or thing. This
provision embodies all what I
have said previously about
powers which are implied from,
inherent to or incidental to the
power or function specifically
provided for. Thus all the steps
embarked upon by the President
in a bid to submit bills to
Parliament to undertake a
possible amendment of the
Constitution were fully backed
by the Constitution in Articles
278(1), 58(1)(2), 297(c)
290(2)and 291(1).It is for these
reasons that on 14th
October 2015 I dismissed all the
reliefs, save the first part of
relief 5 and the entire relief
7, sought by the plaintiff
(e) The
President was therefore within
his mandate in the setting up of
both the Constitution Review
Commission of Inquiry (CRC)
pursuant to CI 64 as well as the
Constitution Review
Implementation Committee (CRIC)
being initiatives prior to or
preparatory to any bills for the
purpose of initiating
amendments. It is for the above
reasons and those articulated by
my respected and able Honourable
Lady Chief Justice (Presiding)
and the three brothers that I
concurred in the dismissal of
the plaintiff’s writ save for
the first segment of relief 5
and the whole of relief 7.
DISSENTING OPINION
(a) In the premises, there
will be judgment for the
plaintiff in terms of the
reliefs which he claims as
follows:- Save that the
President is entitled under
articles 278 (1) (a) of the
Constitution 1992 to appoint
Commission of Inquiry into any
matter of public interest in
which he is satisfied, however
the appointment of the CRC
pursuant to C.I. 64 is null and
void as it contravenes the
letter and spirit of Article 278
(1) (a) of the Constitution
1992, to that extent, relief (1)
is accordingly granted. Flowing
from the grant of relief 1 as
stated above, relief 2 is
accordingly granted. Flowing
from relief 1 supra relief 3 is
accordingly granted. In granting
relief 4 we are of the view that
the CRIC set up by the President
to finalise amendment bills for
both entrenched and
non-entrenched provisions has no
constitutional basis and offends
the letter and spirit of
Article 289 of the Constitution
and accordingly same is null,
void and of no effect
whatsoever. Relief 5 is
accordingly granted as it flows
from relief 4 supraSave that the
President has a limited
mandatory role granted him in
Articles 290 (b), 291 (4) and
292 (a) and (b) of the
Constitution, relief 6 is
granted. Flowing from the above,
relief 7 is accordingly granted.
Save that the defendants herein
are directed to stop forthwith
all steps that are being taken
towards the amendment of the
Constitution flowing from the
amendment process embarked upon
by the CRIC the remaining
averments in relief 8 are
dismissed.In view of the grant
of relief 8 in terms as stated
above, relief 9 is accordingly
struck out as superfluous. We
direct that in view of the
relief granted above Parliament
must assume full control of the
amendment process flowing from
the work or proposals of CRC.
Since it is the convention that
this court does not grant costs
in constitutional cases, relief
11 is refused.
(b) Nothing prevented the
Constitution Review Commission
from presenting the views and
opinions of the citizenry to
Parliament to effect the
amendment of the provisions
which called for the amendment.
I agree with my brother Dotse
JSC that the CRIC has no such
role to play in our constitution
when it comes to amendments of
both entrenched and
non-entrenched provisions. The
President in exercising his
executive powers may appoint a
committee or body to push his
agenda forward but in a serious
matter like an amendment of an
entrenched and non-entrenched
provisions of the constitution,
care must be taken not to expand
the powers of the President in a
matter, which to me, should be
the preserve of Parliament under
the Constitution. With the above
reasons, I agree with my worthy
brother in dissent; and
accordingly grant the reliefs he
has also granted.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution,
1979 Constitution,
1969, Constitution,
Constitution Review
Commission of Inquiry
Instrument, 2010, C.I. 64.
Commissions of
Inquiry (Practice and Procedure)
Rules, 2010 C.I. 65
Supreme Court
Rules, C.CI.16,
Commission of Inquiry
(International Transfer of
Football Players) Instrument,
1999 C.I. 1999;
Commission of Inquiry
(Accra Sports Stadium Disaster)
Instrument, 2001 (3) Commission
of Inquiry (Yendi Events)
Instrument, 2002 C.I. 36
Commission of Inquiry
(Ghana@50) Instrument, 2009 C.I.
61
Interpretation Act,
(Act 792) 2009
Courts Decree, 1966 (NLCD 84)
CASES REFERRED TO IN JUDGMENT
McCulloch v. Maryland, 17
U.S.316
(1819);
Livermore v. Waite (1894), 102
Cal. 113, 118)
Lone Wolf v. Hitchcock, 187
U.S.553 (1903).
Kuenyehia v Archer [1993-94] GLR
525,
Kwakye v Attorney –General
[1981]GLR [1993-94] 2 GLR 35,
Sam
(No2) v Attorney –General [2000]
SCGLR 315
Attorney- General (No2) v Tsatsu
Tsikata (No 2) [2001-2002]
SCGLR620,
Attorney- General (
No 2) v Tsatsu Tsikata (No2)
[2001-2002]SCGLR 620
Republic v Fast
Track High Court Accra; Ex Parte
Daniel [2003-2004] SCGLR 364
Hatch v Stoneman
[1885], 66 Cal. 632 [6 Pac, 734
Asare v. Attorney-General
[2003-2004]SCGLR 823:
Whiteman v Sadler
[1910]AC 514
Republic v Yebbi &
Avalifo [2000] SCGLR 149
R V Sussex
Confirming Authority; Ex Parte
Tamplin & Sons Brewery
(Brighton) Ltd. (1937) 4 All ER
NMC v Attorney
General [2000] SCGLR 1
Edusei (No2) v The
Attorney-General [1998-99] SCGLR
75
MC CULLOCH v STATE
OF MARYLAND, 17 U.S. 316 (1819)
US v Gettysburg Electric Railway
Co, 160 US 668, (1896)
Milwaukee Social
Democratic Publishing Co. vs.
Burleston 255 U.S 407
Youngstown Sheet &
Tube Co. v. Sawyer (The Steel
Seizure Case) 343 U.S. 579
(1952)
Springer vs.
Philippine Islands, 277 U.S 189
Edusei (No 2) v
Attorney General (1998-1999)
SCGLR753
Tuffour v Attorney
General [1980] GLR 637.
Clark (CAJ) Ltd v
Inland Revenue Commission [1973]
1 WLR 905,
Addo v Sarbah
[1968] 154.
National Media
Commission vs Attorney General
[2000] SCGLR 1
Gbedemah is a local
example. (see Awoonor Williams v
Gbedemah (1970 2 G &G 442)
Sallah v
Attorney-General, (1970) CC 55
Republic v High
Court, Accra: Ex- Parte Adjei,
[1984-1986] GLRD 130
Liversidge v
Anderson &Anr. [1942] A.C 206
In Re Parliamentary
Election for Wulensi
Constitutency; Zakaria v
Nyimakan [2003-2004]SCGLR 1
Marbury v Madison,
1 cranch 137, 2 L.E.d. 60
(1803).
Amidu v President
Kufuor [2001-2002] SCGLR 86,
Brown v A. G.
(Audit Service case) [2010]
SCGLR 183, at 237
Appiah-Ofori v A.
G. [2010] SCGLR 484, at 549
AMERICAN
COMMUNICATIONS ASSOCIATION v
DOUDS 339 US 382, 439 (1950)
BOOKS REFERRED TO IN JUDGMENT
Jiagge Assets Commission
under NLCD 72
DELIVERING THE LEADING JUDGMENT
WOOD (MRS), CJ BONNIE, JSC
GBADEGBE, JSC BENIN, JSC AKAMBA,
JSC
DISSENTING
DOTSE, JSC YEBOAH, JSC
COUNSEL
GODFRED YEBOAH- DAME ESQ. WITH
HIM PROF. KENNETH AGYEMANG
ATTAFUAH ESQ. AND ERIC DELANYO
ALIFO ESQ. FOR THE PLAINTIFF.
SYLVESTER
WILLIAMS ESQ. CHIEF STATE
ATTORNEY FOR THE DEFENDANT.
WOOD
(MRS), CJ:
These are the reasons for my
decisions dated 15th
of October 2015. Under the new
order of constitutional
democracy in Ghana, the 1992,
the Constitution, in conformity
with the cardinal democratic
principle of separated powers of
government, has vested the
legislative authority in
Parliament. A Constitution is
not meant to be static. It is a
living political document
capable of growth. Consequently,
the framers of the Constitution,
under Chapter 25, have designed
a process, albeit an arduous and
stringent process, by which
necessary amendments to it may
be effected.
The rigorous processes and
procedures provide the
safeguards needed to check and
prevent arbitrariness and abuse.
Of particular significance is
the article 289, clause (1)
which stipulates that:
“Subject to the
provisions of the Constitution,
Parliament may, by an Act of
Parliament, amend any provision
of this Constitution.
289 (2) provides:
“This Constitution shall
not be amended by an Act of
Parliament or altered directly
or indirectly unless-
(a)
the sole purpose of the
Act is to amend this
Constitution
and
(b)
the Act has been passed in
accordance with this
Chapter.
The Chapter 25entrenched
provisions of the 1992
Constitution, thus sanctions
alteration of constitutional
provisions effected in strict
conformance, with the Chapter
25, titled “Amendment of the
Constitution”, that is, the
processes and procedures
carefully circumscribed under
it.
The legitimate question is
what triggered this instant
constitutional litigation?
Invoking the powers invested in
him pursuant to article 289 of
the 1992 Constitution, the
President set up a ten member
Constitution Review Commission
(CRC), under the Constitution
Review Commission of Inquiry
Instrument, 2010, C.I. 64. The
CRC was mandated to do the
following:
a.
To ascertain from the
people of Ghana, their views on
the operation of the 1992 Fourth
Republican Constitution and, in
particular, the strengths and
weaknesses of the Constitution;
b.
To articulate the concerns
of the people of Ghana on
amendments that may be required
for a comprehensive review of
the 1992 Constitution; and
c.
To make recommendations to
the Government for consideration
and provide a draft Bill for
possible amendments to the 1992
Constitution.
In June 2012, the
Government issued a white paper
on the report of the CRC, in
which most, if not all of the
recommendations were accepted by
the President.
In October 2012, the
Government set up yet another
body, a five-member Constitution
Review and Implementation
Committee (CRIC), which
according to the Plaintiff’s
statement of case was, “to
implement, in strict compliance
with chapter 25 of the
Constitution on “Amendments to
the Constitution,” the
recommendations that have been
accepted by Government.
The CRIC is said to have
taken a number of actions,
fuller details which will
shortly be set out, and which in
the view of the Plaintiff are
clearly inconsistent with
Parliament’s role as the
legislative authority
exclusively vested with power to
effect constitutional
amendments.
In this action, which
invokes the original
jurisdiction of this court,
pursuant to articles 2(1) (b)
and 130 (1) of the 1992
Constitution, the Plaintiff,
questions the constitutionality
of these Executive branch
sponsored activities, and prays
for the following reliefs:
“1 A Declaration that the
Constitution Review Commission
of Inquiry Instrument, 2010,
C.I. 64 is null, void and of no
effect as it contravenes the
letter and spirit of Article
289(1) of the 1992 Constitution,
in that the effect, if not the
intended purpose, of C.I. 64 is
to usurp powers that the 1992
Constitution expressly,
exclusively and specifically
conferred to Parliament.
2A Declaration that the
powers granted to the President
under Article 278(1) to “appoint
a commission of inquiry into any
matter of public interest” does
not include the power to
establish a commission to review
and propose amendment bills to
the Constitution where such
powers to review and propose
amendment bills to the
Constitution have been
expressly, exclusively and
specifically conferred to
Parliament.
3A declaration that
Article 278(1) does not grant
the President an all-purpose
commissioning power but only
gives him the power to
commission an independent
inquiry to investigate and
establish the truth relating to
an entity’s affairs, activities
or some specific occurrence that
is in the public interest.
5A declaration that the
Constitution Review
Implementation Committee (CRIC)
set up by the President to
finalize amendment bills for
both the entrenched and
non-entrenched provisions is
alien to the Constitution and
any and all of its activities
directed at finalizing amendment
bills that touch on any and all
aspects of the Constitution,
whether entrenched or
non-entrenched, are unlawful,
unconstitutional, impermissible,
null, void and of no effect.
5A declaration that the 1992
Constitution can be amended only
in accordance with the express
provisions of Chapter 25 of the
Constitution and that the
President’s role in any such
constitutional amendments is
limited to the ministerial tasks
stipulated in Article 290(6),
291(4) and 292(a).
5
A declaration that
Parliament’s power to amend the
Constitution as stipulated in
Article 289(1) is plenary and
exclusive.
6
A declaration that
Parliament’s power to amend the
Constitution as stipulated in
Article 289(1) cannot be
delegated to or usurped by the
President.
7
An order directing the
President, the Chairman and
Members of the Constitution
Review Commission (CRC), the
Chairman and Members of the
CRIC, the Attorney General,
their deputies, agents, or
employees or any other servant
or agent of the Republic to
permanently cease and desist
from taking any actions that
seek to amend or otherwise
disturb the Constitution in so
far as such actions are
inconsistent with Chapter 25 of
the Constitution.”
It bears emphasis that it
is these facts, as disclosed per
the Plaintiff’s pleadings, filed
pursuant to rule 46 of the
Supreme Court Rules,
C.I.16,which provoked the issue
of this writ. Tritely, they
constitute the factson which
this action is predicated, not
additional new facts that
Plaintiff may have alluded to in
his legal arguments. Those
substantial and relevant facts
on which the Plaintiff’s action
is grounded include the
following:
1.
“Pursuant to the
instructions from the President,
the CRIC has issued a draft bill
for the amendment of 34
entrenched provisions of the
Constitution. In addition, the
draft bill will introduce 7 new
entrenched provisions along with
consequential and transitional
provisions.
2.
According to the unelected
Chairman of the CRIC, Ghanaians
must decide in a referendum by
voting either “Yes” or “No” on
all changes to the 34 entrenched
provisions and the addition of
the 7 entrenched provisions
rather than vote on each
proposed amendment.- views,
nothing more as the referendum
must be conducted / organised by
EC, not the CRIC
3.
The CRIC has also
announced the preparation of the
Armed Forces Amendment Bill and
has proposed amendments to
several non-entrenched
provisions on matters ranging
from the abolition of regional
tribunals, election of district
chief executives from a slate of
candidates provided by the
President and revision to the
retirement age subject to the
exigencies of a particular
profession.”
The Plaintiff’s writ and
pleadings demonstrate that he
has two broad complaints against
the Defendant. This action thus
raises two main issues for
consideration, namely, the
issues (i) and (iii) of his
memorandum of issues, details of
which I will provide in due
course. Other subsidiary
questions flow from these two
central issues, but, as may be
clearly gathered from the
summary of his pleadings, which
is neatly captured under the
concluding paragraph 30 of the
verified statement of case; his
main grievances are two- fold.
The essential parts of his
pleadings, from which this
conclusion is drawn, is captured
in the following paragraphs of
his legal arguments:
15“The Plaintiff’s case is
that the President’s article
278(1)(a) powers to appoint
commissions of inquiry do not
extend to setting up commissions
to review the Constitution or to
make such breathtaking changes
to the Constitution…
20 The plaintiff’s case is
that the power to amend the
Constitution conferred to
Parliament in Article 289(1) is
plenary and exclusive in that
the Article separately
identifies, defines and
completely vests the amendment
power in Parliament and only
Parliament. That authority can
neither be delegated to nor
usurped by the President.
21 The plaintiff says
that consistent with Article
297(c) the power vested in
Parliament to amend the
Constitution under Article
289(1) includes any and all
incidental powers necessary for
the accomplishment of the
express power so conferred,
including but not limited to the
power to initiate amendment
bills, hold hearings in
committee, pass legislation to
guide any review or reform of
the Constitution or to deploy
such other methods or processes
as Parliament may deem necessary
that are not inconsistent with
the Constitution…
25 The plaintiff’s case is
that it is impermissible for the
President to misappropriate his
Article 278(1) powers to undo
the carefully designed amendment
architecture in chapter 25 of
the Constitution…
26 The plaintiff’s case is
that not having the powers to
set up a commission to review
the Constitution, the
President’s purported
appointment of the CRC and the
CRIC are of no legal effect and
any actions ensuing from the CRC
and CRIC are also null, void,
unlawful and unconstitutional…
30
In brief, the Plaintiff’s case
is that the Constitution can
only be amended by its terms.
Parliament is the sole body that
can initiate, consider and
propose amendments to the
Constitution. Parliament’s power
to amend the Constitution is not
only plenary and exclusive but
also cannot be delegated to or
usurped by the President, the
Commission (CRC) or the
Committee (CRIC). ...The
President has no power to set up
a commission to initiate
amendments or draft amendment
bills to the Constitution… To
the extent that the President
has usurped Parliamentary powers
and misappropriated Article
278(1) to traverse the amendment
architecture emplaced by Chapter
25 of the Constitution, it is
the Plaintiff’s case that C.I.
64 setting up the Constitution
Review Commission, all actions
taken by the Commission, the
establishment of the
Constitution Review and
Implementation Committee and all
its actions are unlawful,
unconstitutional, impermissible,
null, void and of no effect.”
The parties identified and
separately filed the following
memorandum of issues for
determination.
PLAINTIFF’S
MEMORANDUM OF ISSUES
i)
Whether the power granted to the
President under Article 278(1)
to “appoint a commission of
inquiry into any matter of
public interest” includes the
power to establish a commission
of inquiry to review and propose
amendment bills to the
Constitution where the power to
review and propose amendment
bills to the Constitution has
been expressly, exclusively and
specifically conferred to
Parliament?
ii)
Whether the President has any
power under the Constitution to
set up a Constitution Review
Implementation Committee (CRIC)
with the mandate to implement,
in strict compliance with
Chapter 25 of the Constitution,
the recommendations of the
Constituition Review Committee
(CRC) that have been accepted by
the government?
iii)
Whether Parliament’s power to
amend the Constitution in
conformance with the processes
stipulated by chapter 25 of the
Constitution is plenary and
exclusive and therefore cannot
be usurped by or even delegated
to the President?
iv)
Whether processes and procedures
not explicitly specified by the
Constitution, including
wholesale review of the
Constitution, can be used to
amend the 1992 Constitution?
v)
Whether the President’s role in
any such constitutional
amendments is limited to the
ministerial tasks stipulated in
Article 290(6), 291(4) and
292(a)?
DEFENDANT’S MEMORANDUM OF ISSUES
1.
Whether the Constitution
Review Commission of Enquiry
Instrument, 2010 C. I. 64
contravenes the letter and
spirit of article 289 (1) of the
1992 Constitution and therefore
must be declared as null and
void.
2.
Whether under article
278(1) of the Constitution,
1992, the President has the
power to establish a commission
to review and propose amendments
bills to the Constitution.
3.
Whether or not the
Constitution Review
Implementation Committee and all
its activities relating to
finalizing amendment bills for
the Constitution are
impermissible, unlawful,
unconstitutional and null and
void.
4.
Whether Parliament is the
only intuition that can amend
the constitution.
I start off with what
perhaps appears to be the one
non- controversial and thus
narrow point of convergence
between the parties. It
accurately reflects the correct
constitutional position under
our system of democratic
governance. It is this: the 1992
Constitution vests the
legislative power of government
in Parliament. Thus, in
conformity with the well-known
doctrine of separation of
powers, among the three separate
and yet inter-dependent organs
of State, Parliament is the
repository of legislative
authority. This means that the
core legislative function,
namely, the actual
implementation of the mechanics,
namely, the processes and
procedures for carrying through,
and effectuating and bringing
into being legislation,
including constitutional
amendments, as envisaged under
Chapter 25, is vested in
Parliament.
The Chapter 25, titled
“Amendment of the Constitution”,
thus lays down the detailed
framework for constitutional
amendment as noted. It is the
true and proper interpretation
to be placed on the Chapter 25,
within the context of other
constitutional provisions, viz a
viz the impugned actions of the
President, that sharply divides
the parties.
It is the case of the
Plaintiff that this Chapter
25“amendment architecture”,
implies that the initiation,
collating of views, forming
proposals, indeed every single
activity that could kick-start
Parliament’s core legislative
function of closely following
the constitutional processes and
procedures outlined, to effect
a valid constitutional
amendment, is also the exclusive
preserve of Parliament. Amending
a constitution is not an event,
but a whole process, which may
include, information gathering,
discussions among various
interest and stakeholder groups,
public engagement, coalition and
consensus building, legitimate
grassroots or direct lobbying,
and advocacy efforts,
formulating draft amendment
bills etc. These are included
in activities that I would for
the sake of brevity describe as
the pre- amendment or
pre-legislative activities, or
to some extent, frontend
activities going by the
Plaintiff’s labeling of such
core pre-legislative amendment
function.
The Plaintiff argues that
the frontend activities are
exclusively vested in Parliament
and consequently the President
lacks constitutional authority
to collate views from the
citizenry, make proposals to
Parliament for constitutional
amendment, as he sought to do
through the activities of the
CRC and the CRIC and in any
event, has no power to stampede
Parliament into amending the
Constitution in the manner he
sought to do.
DETERMINATION
I propose to deal first
with the issue relating to the
exclusive vesting of the
pre-legislative function in
Parliament. The issue is whether
or not the fact that,
legislative authority is vested
in Parliament- based on the
separation of powers doctrine,
implies that the authority to
engage in pre- legislative or
frontend activities, which
activities may include
initiating proposals for
constitutional amendment, is
plenary and exclusively vested
in the legislature. I re-produce
issue (iii) of the Plaintiff’s
memorandum of issues, which is
not substantially different from
Defendant’s version as captured
under their paragraph 2,
reinforcing the rationale behind
the rule 46 of the Supreme Court
Rules, CI.16, which advocates
the filing of joint memorandum
of issues by parties in actions
to invoke the exclusive
jurisdiction of this court and
its utility. The centrality of
the issue (iii) to the entire
action does not admit of
argumentation. An affirmative
answer would end this entire
debate, as the actions of both
the CRC and CRIC would out
rightly, without more, be
rendered null, void and
unconstitutional. It reads:
iii) “Whether Parliament’s
power to amend the Constitution
in conformance with the
processes stipulated by Chapter
25 of the Constitution is
plenary and exclusive and
therefore cannot be usurped by
or even delegated to the
President.”
The Plaintiff’s
comprehensive legal arguments in
expatiation of his case rest on
three foundations. These are the
(i) common law implied power
doctrine; (ii) predicate-act
canon of interpretation; and
(iii) the text of the 1992
Constitution.
It would be prudent to
produce the relevant portions of
his extensive arguments under
paragraph C.
“5.Considering this carefully
designed amendment architecture,
it is the Plaintiff’s case that
the power granted to Parliament
under Article 289(1) is
therefore the power to
propose and pass
amendments to the provisions of
the Constitution in the form of
amendment bills. However, in the
case of entrenched provisions,
the power to pass an amendment
bill is merely a ministerial
power. It is also the
plaintiff’s case that the
Constitution does not grant the
President any
constitutional role in the
frontend (initiation to passage)
of the amendment process. The
President’s sole role in the
amendment process is at the
backend and even here he only
wields the ministerial power of
assent…
5.
Plaintiff further submits and
emphasizes that Parliament’s
power to amend the Constitution
does not derive from its general
legislative authority under
Article 93(2) but from the
specific grant of authority in
Article 289(1).Further,
Parliament has no obligation to
amend the Constitution. Nor can
the President, or other
Constitutional bodies, conscript
Parliament into amending the
Constitution. The power granted
under Article 289(1) is the
power to choose to amend or not
to amend the Constitution.
7…Without doubt,
Parliament’s amendment power
under Article 289(1) includes
the power to frame
constitutional changes, initiate
amendment bills, hold
hearings in committee, pass
legislation to guide any review
or reform of the Constitution or
to deploy such other methods or
processes as Parliament may deem
necessary that are not
inconsistent with the
Constitution.
This proposition is
supported by the (i) common law
implied power doctrine; (ii)
predicate-act canon of
interpretation; and (iii) the
text of the 1992 Constitution.
8.The implied powers
doctrine is a very long
established constitutional law
principle, which provides that
the specific grant of power to a
person or a body must be
construed to include any and all
incidental powers necessary for
the accomplishment of the
express power so conferred(See,
McCulloch v. Maryland, 17
U.S.316
(1819);
Livermore v. Waite (1894), 102
Cal. 113, 118) “A
Constitution, to contain an
accurate detail of all the
subdivisions of which its great
powers will admit, and of all
the means by which they may be
carried into execution, would
partake of the prolixity of a
legal code, and could scarcely
be embraced by the human mind.
It would probably never be
understood by the public. Its
nature, therefore, requires that
only its great outlines should
be marked, its important objects
designated, and the minor
ingredients which compose those
objects be deduced from the
nature of the objects
themselves” (McCulloch at 407).
9.
Similarly, the predicate-act
canon of interpretation provides
that “where a general power is
conferred or duty enjoined,
every particular power necessary
for the exercise of the one, or
the performance of the other, is
also conferred. Thus, this canon of interpretation will indicate that the
specific and discretionary power
granted to Parliament to amend
the Constitution necessarily
includes the power over all the
steps incidental to and
necessary for the amendment of
the Constitution, especially the
initiation of amendment bills.
10 But the Constitution of
Ghana has not left the right of
Parliament to employ the
necessary means for the
execution of its amendment power
to doctrines, canons of
interpretation or general
reasoning. To its express grant
of amendment power to Parliament
in Article 289(1) is added the
“necessary powers” in Article
297(c), which provides that “where
a power is given to a person or
authority to do or enforce the
doing of an act or a thing, all
such powers shall be deemed to
be also given as are necessary
to enable that person or
authority to do or enforce the
doing of the act of thing.”
11.It is Plaintiff’s case
that the combined effect of
Article 289(1) and 297(c), the
implied powers doctrine and the
predicate-act canon of
interpretation is that
Parliament’s power to amend the
Constitution includesany and all
the incidental powers necessary
for the accomplishment of the
express power so conferred,
including but not limited to the
power to initiate amendment
bills, hold hearings in
committee, pass legislation to
guide any review or reform of
the Constitution or to deploy
such other methods or processes
as Parliament may deem necessary
that are not inconsistent with
the Constitution…
13… Plaintiff further
submits that Parliament’s power
to propose amendment bills to
the Constitution is plenary. A
plenary power or plenary
authority is the separate
identification, definition, and
complete vesting of a power or
powers or authority in a
governing body or individual, to
choose to act (or not to act) on
a particular subject matter or
area.Parliament’s
power to propose constitutional
amendment bills under Article
289(1) is plenary and exclusive
in that the Article separately
identifies, defines and
completely vests the amendment
power in Parliament and only
Parliament….
14.It is a well
established constitutional
principle that “the assignment
of a plenary power to one body
divests all other bodies
from the right to exercise that
power, and where not otherwise
entitled; also, the right to
substantively review the
exercise of that power in a
particular instance or in
general” (see,
Lone Wolf v. Hitchcock,
187
U.S.553 (1903).
15…The
Constitution has vested only
executive authority in the
President (Article 58, 1992
Constitution). That authority
extends to the execution and
maintenance of this Constitution
and all laws made under or
continued in force by this
Constitution but does not
include any authority to review
or put in motion a machinery to
amend or rewrite the
Constitution.
16. Plaintiff respectfully
submits that Parliament’s
amendment power is discretionary
rather than mandatory.
Parliament may amend the
Constitution. This also means
that Parliament may not amend
the Constitution… the President
cannot by executive action
conscript Parliament to exercise
its amendment power. It is also
Plaintiff’s case that the
President cannot exercise any or
part of the amendment powers
reserved for Parliament thereby
stampeding Parliament to take
actions that it would not have
taken suo moto.
17.Given that Parliament’s
power to propose amendment bills
to the Constitution is plenary
and exclusive, Plaintiff further
submits that this amendment
power can neither be delegated
to nor usurped by the President.
In fact, plaintiff respectfully
submits that Parliament’s
plenary power to propose
amendment bills to the
Constitution divests the
President and all other
governmental bodies or
constitutional organs, including
the CRC and CRIC, from the right
to exercise the amendment power,
or part thereof, whether by way
of proposing or preparing
amendment bills, implementing
draft bills, whether or not it
purports to be in accordance
with chapter 25 of the
Constitution, sending draft
amendment bills to the Speaker
to be forwarded to the Council
of State, coordinating with the
EC to prepare the country for a
referendum to vote on the
entrenched provisions, and all
such actions that are
necessary and incidental to
amending the Constitution.”
THE RESPONDENT’S ARGUMENTS AT LAW
These are
not as detailed as the
Plaintiff’s, but nonetheless
clear on its face, as borne out
by the written statement. They
argue while Parliament, which is
the body clothed with
legislative authority may
self-generate amendments, and
carry out the pre-legislative
activities, nothing in our
Constitution forbids the
Executive from making
legislative proposals to
Parliament. The following is
their brief answer to the
Plaintiffs detailed arguments:
“18 It is
our submission that Article 289
(1) does not confer on
Parliament the exclusive mandate
to amend any provision of this
Constitution. It is the right of
the President to constitute a
Commission of Inquiry to
undertake the preparatory work
towards the amendments of
certain parts of the
Constitution, especially, when
the President is satisfied that
it is in the interest of the
Public to do so. It is our view
that the Constitution Review
Commission of Inquiry was a
lawful Institution so is its
offshoot, the Constitution
Review and Implementation
Committee.
19 . It is
our position that both
provisions of the Constitution,
Articles 278(1)(a) and 289(1)
complements each other regarding
the amendments of some of the
provisions of the Constitution.
Article 278(1)(a) of the
Constitution, 1992, enable the
people of Ghana to partake in
the amendment process by
submitting memoranda or
articulating their views on some
provisions of the Constitution.
These pieces of information put
together become the building
blocks of the Bill, which
initiate the amendment process.
It is to be noted that the
national Constitution is a
framework and it cannot take
care of every activity in this
Country. Provided the steps
being taken are in tandem with
the law, the same is lawful. The
establishment of the CRIC is
just one of the processes of
putting up a Bill for amendment
following the information
gathered by the CRC.”
It is trite
learning that it is the
legislative branch of government
that makes laws. In today’s
modern and complex world, it is
generally believed that the
strictly rigid and absolute
application of the separation of
powers doctrine is
impracticable. The difficulty
confronting us in this case is
that, although the article 289
of the1992 Constitution
expressly vests the legislative
authority to amend the
Constitution exclusively in
Parliament, it is silent on who
is clothed with power, whether
exclusively or otherwise, to
engage in or undertake those
frontend or pre –legislative
activities that precede the
actual constitutional amendment
processes and procedures
outlined in Chapter 25. In
construing the relevant article
289 and other constitutional
provisions, in a bid to unlock
mind of the framers of the 1992
Constitution, I have been guided
by the basic well-established
constitutional principles that
have influenced constitutional
interpretation in this court.
These include the need for a
purposively broad, liberal and
benevolent interpretation of the
Constitution as a whole, so far
as the language of the
constitution would admit, having
due regard to the underlying
values and principles that need
to be promoted to safeguarded
our system of participatory
democracy, the principle that
the constitution is a document
sui generis, and allied to this,
the principle that the
constitution must be interpreted
in the light of its own words,
and not words found in some
other written constitution.
Cases which emphasise this
interpretative principle include
Kuenyehia v Archer [1993-94] GLR
525, at 562 Kwakye v Attorney
–General [1981]GLR [1993-94] 2
GLR 35, at 63 SC and Sam (No2) v
Attorney –General [2000] SCGLR
at 315 and Attorney- General
(No2) v Tsatsu Tsikata (No 2)
[2001-2002] SCGLR620, at 639. I
found these cases relevant and
instructive having regard to the
Plaintiff’s reliance on the
wording in other written
constitutions, notably, the
State of Florida Iran and Kenya,
to press the argument that, a
fortiori, the Chapter 25 be
interpreted in the light of the
constitutional positions that
obtain in these other countries
and be construed as vesting the
pre-legislative or frontend
activities exclusively in
Parliament and no other person,
group of persons or
organisation. This argument if
carried to its logical
conclusion would exclude all
other individuals, bodies, or
organisation from engaging in
any pre-legislative activities.
The reason
why I am not minded to accept
this proposition is because
while the constitutions of those
countries expressly delineate
how and by whom these frontend
activities are to be carried
out, ours does not. Thus, as the
Plaintiff himself confessed, the
Kenyan 2010 Constitution
expressly provides amendment by
Parliamentary initiative per
article 256, and popular
initiative per article 257, in
the form of a“general suggestion
or a formulated draft Bill”, and
again as regards the popular
initiative mode, with the
Constitution expressly
delineating the number of
registered voters who must sign
a proposed amendment to qualify
it for consideration or trigger
the next stage of the actual
amendment process. Thus, article
257 (1)-(3) of the 2010 Kenyan
Constitution provides:
257(1) An
amendment to this Constitution
may be proposed by a popular
initiative signed by at least
one million registered voters.
(2) A
popular initiative for an
amendment to this Constitution
may be in the form of a general
suggestion or a formulated draft
Bill.
(3) If a
popular initiative is in the
form of a general suggestion,
the promoters of that popular
initiative shall formulate it
into a draft Bill.”
We do not
have similar express provisions
in our Constituion.
I do not
question
the validity or indeed the
soundness of the theory that the
framers of the Constitution are
at liberty to settle on the
modes of initiating amendment
proposals. And also that once a
mode is specified, it is that
which must be complied with
strictly to effect a valid
amendment. The implied powers
doctrine, and the related
predicate-act canon are, indeed
salutary constitutional
principles. My difficulty with
the Plaintiff’s arguments
relative to these doctrines is
his contention that we invoke
them in relation to the Chapter
25 provisions and having regard
to what his comparative analysis
of what obtains in other
jurisdictions, impliedly read
the exclusive vesting in
Parliament of all frontend
activities into the Chapter
25.These are not inflexible
constitutional doctrines. Their
indiscriminate and wholesale
application of these doctrines
to all cases under all
circumstances is clearly not to
be countenanced in
constitutional interpretation.
These are doctrines, which, like
all other principles ought to be
applied in the context of each
given case, specifically in the
context of the power conferred.
Thus, I would for example, apply
the implied powers doctrine
strictly within the narrow
compass of the Chapter 25
proper, with the result that the
specific and express grant of
power to Parliament to amend any
provision of the Constitution,
must be construed impliedly to
include any and all incidental
powers necessary for Parliament
to effectuate all constitutional
amendments in the express manner
provided under Chapter 25. I
would not invoke these doctrines
to restrict or limit pre-
legislative initiatives
exclusively to Parliament alone,
the reason being that the
Constitution does not expressly
restrict the pre –legislative
activities exclusively to the
legislature. A conferment of
this fundamental authority on
the legislature exclusively,
would have justified an implied
inclusion of all the necessary
incidental powers.
Chief Justice Marshall
explained the implied doctrine
thus:
“We must never forget that
it is a Constitution we are
expounding.” “A constitution, to
contain an accurate detail of
all subdivisions of which its
great will power admit, and of
all the means by which they may
be carried into execution, would
partake of the prolixity of a
legal code, and could scarcely
be embraced by the human mind.
It would probably never be
understood by the human mind. It
would probably never be
understood by the public. Its
nature, therefore requires that
only its great outlines should
be marked, its important objects
designated, and the minor
ingredients which compose those
objects be deduced from the
nature of the objects
themselves” (McCulloch at 407).
The second point I wish to
make in relation to this
doctrine is this. A well
–recognised principle in
constitutional interpretation is
that every national
constitution, and a fortiori,
its provisions is suis generis,
and thus calls for principles of
its own or suitable to its
peculiar character. The land
mark case of Tuffuor v Attorney-
General [1980] GLR 637 at 647,
per Sowah JSC and Kuenyehia v
Archer [1993-94] 2GLR525 at 561,
per François JSC, are two local
cases which recognised this
principle and gave due weight to
its application.
When Chief Justice
Marshall’s implied power
doctrine, is examined in the
light of the suis generis
principle, it would be
recognised that every national
Constitution and for that matter
each provision, being suis
generis in character, has what
constitutes its own peculiar
“great outlines that should be
marked”, those “important
objects” that need to be
designated, as opposed to those
that may properly be categorised
as “minor ingredients” which
compose those objects. Thus, in
constitutional adjudication, in
any given case, a just
application of the doctrine
requires first that a
distinction be drawn between
those matters which constitute
“great outlines” or “important
objects” and those which do not,
and may aptly be described as
constituting “minor
ingredients”, and so deducible
from the great outlines or
objects. In other words, what
constitute great outlines as
opposed to minor ingredients are
issues that merit a case- by-
case determination, based no
doubt on therelevant factors.
And so I ask the question.
Under the article 289 (1) of the
1992 Constitution, those
pre-legislative or frontend
activities and initiatives of
formulating proposals etc, that
need to be carried out, to
enable Parliament in the
exercise of its express powers
of amendment, conferred on it by
the Constitution, effectuate a
valid amendment applying
strictly the Chapter 25
processes and procedures, do
they constitute great outlines
or objects or are they minor
ingredients or fine details, as
understood in the context of the
implied powers doctrine? I am of
the view that they are great or
important objects that would
have been expressly marked or
designated by the framers of our
Constitution, in the manner they
wanted, to suit their
intentions, if they were minded
to. The point I wish to
emphasise given the factual
context of this specific case
and the issues for determination
is that, in my respectful view,
if the framers of our
Constitution had desired to
designate and mark out in
specific and clear terms, the
mode by which and by whom
amendment initiatives, which
constitute a most important
frontend or pre-legislative
activity were to be exclusively
limited to Parliament and
Parliament alone, they would
have done so, as did their
counterparts in Florida or Kenya
respectively under Article XI,
sections 3, 4 of the
Constitution of the State of
Florida, or Articles 256 and 257
of the Kenyan 2010 Constitution,
which allows amendments by both
parliamentary and popular
initiatives. To be more
specific, I hold the view that
reposing pre-legislative
amendment activity in Parliament
alone, to the total exclusion of
any other person, or group of
persons or organisation is,
employing the implied doctrine
theory or the predicate-act
canon, cannot be justified in
the circumstances of this case.
On the Plaintiff’s own
showing, in the Florida, Iran,
and Kenyan examples he referred
to, their respective
Constitutions expressly provide
the method, or the mode, by
which amendment proposals may be
initiated. When such a great
object conferring exclusive
power on Parliament has not been
expressly designated in a
written Constituion, as in our
case, I find it difficult to
invoke the implied powers
doctrine or the predicate –act
canon. To read the exclusive
vesting of the pre-legislative
functions to Parliament into our
Chapter 25, in the absence of
any express provisions to that
effect, would, in my view,
amount to a clear usurpation of
the principle that courts must
avoid importing into written
constitutions words which are
not found therein. This caution
was sounded by Acquah JSC (as he
then was ) in the case of
Attorney- General ( No 2) v
Tsatsu Tsikata (No2)
[2001-2002]SCGLR 620 and more
lately, Republic v Fast Track
High Court Accra; Ex Parte
Daniel [2003-2004] SCGLR 364, in
which Kludze JSC stated:
“We cannot, under the
cloak of constitutional
interpretation, re write the
Constitution of Ghana. Even in
the area of statutory
interpretation, we cannot amend
a piece of legislation because
we dislike its terms or because
we suppose that the law giver
was mistaken or unwise. Our
responsibility is greater when
we interprete the Constitution.
We cannot and must not
substitute our wisdom for the
collective wisdom of the framers
of the Constitution.”
Plaintiff himself admits
the following crucial matters in
his legal arguments:
“5 In jurisdictions that allow a
review of the Constitution, the
Constitution is clear on the
timing of the review (e.g.,
every 20 years), the membership
of the Commission (including
representation by identifiable
groups as well as the size of
the Commission), the scope of
the review, and the process by
which the Commission’s proposals
ripen into constitutional
amendments...
9. The Committee of Experts
recommended that the “fabric and
essential character of the
Constitution must be preserved
by excluding (sic)hasty and
ill-considered amendment of the
fundamental provisions of the
Constitution.” The Committee
suggested that “such changes
should only occur through
procedures which would ensure
adequate support and desire for
the changes.”
10.It was because of the above
recommendation that some
provisions of the Constitution
were entrenched. Further, it was
because of this recommendation
that Article 290(2) commands the
Speaker to refer “a bill for the
amendment of an entrenched
provision” to the Council of
State for advice before
Parliament proceeds to consider
it.”
My thinking is this no doubt
Parliament has power to
self-generate these
pre-legislative activities. But,
if with the full knowledge of
our peculiar needs, and the
various options by which
amendment proposals may be
initiated, the framers of the
Constitution, nevertheless
failed to expressly provide for
these specific objects or the
body or bodies entrusted with
specific authority to undertake
pre-legislative activities, as
obtains in other jurisdictions,
by what authority can we claim
that these activities are the
exclusive preserve of
Parliament? Is it not the proper
inference that matters were, for
good reasons left open?
Finally, Plaintiff argues
that the text of other1992
Constitutional provisions
support the view that the
framers clear intention is to
exclude from pre-legislative
activities, other non-Parliament
groupings, including “we the
people” as opted for by Kenya,
in the exercise of their
legitimate democratic rights to
make suggestions or proposals to
Parliament for amendments to be
effectuated in strict compliance
with Chapter 25.
His legal arguments are
quoted hereunder, in extenso.
“22. While the plenary and
implied power doctrines settle
the question of who has the
power to initiate constitutional
amendments, other important
constitutional considerations
support the same conclusion. In
particular, the Constitution is
always explicit and quite clear
when the intention is to have
the President, and only the
President, originate particular
kinds of legislation.
23. This is the case, for
example, with bills relating to
public finance. Thus, for
instance, in Article 174(1), the
Constitution states that, “no
taxation shall be imposed
otherwise than by or under the
authority of an Act of
Parliament.” To forestall
disputation as to when and by
whom a bill of taxation is to be
originated, Article 179(1)
specifically empowers and
commands the President to “cause
to be prepared and laid before
Parliament at least one month
before the end of the financial
year, estimates of the revenues
and expenditure.”Similarly, in
Article 108, the Constitution
clearly bars Parliament from
proceeding on bills that impose
charges on the consolidated or
other public funds, “unless the
bill is introduced by, or on
behalf of the President.”
24. The express
delineation in the Constitution
of those specific instances
where legislative initiative
belongs to the President
implies, following the maxim
“expressio unius est exclusio
alterius,” that in all other
cases the origination of
legislative action must remain
with the legislative body itself
(see Hatch v Stoneman [1885], 66
Cal. 632 [6 Pac, 734] where it
is held that the legislature in
proposing amendments to the
constitution is not exercising
legislative power and the
governor has nothing to do with
such proposals).
25. Thus, when Article
289(1) expressly designates
Parliament as the body that “may
amend any provision of the
Constitution,” and does not
designate the President as the
one who must introduce a bill of
amendment, it must be understood
that the origination power in
matters of constitutional
amendment remains with
Parliament. Not only that, but
also no extra-parliamentary body
is empowered to do any
preparatory work for
Parliament.”
My answer to this argument
is that the specific mention of
the President’s role viz a viz
that express general legislative
power, under articles 108, and
179(1), does not imply an ouster
in other roles or areas;
including frontend or
pre-legislative activities which
may lead to possible
constitutional amendments. I
think it means he is the
specific authority that must
attend to those prescribed
matters. Had the framers been
intent on limiting the President
to only these important
financial matters of State in
the legislative affairs of the
nation, the Constitution would
have explicitly made provision
to that effect. As succinctly
expressed by Kludze JSC in Asare
v. Attorney-General
[2003-2004]SCGLR823 at 847:
“expressum facit cessare
tacitum. It means when a “when a
thing is expressly stated, it
ends speculation as to whether
some-thing inconsistent may be
implied.” It also means that
express enactment shuts the door
to further implication and
speculation: see Whiteman v
Sadler [1910]AC 514 at 517.”
I would accept the
argument that the role of the
President, is limited solely to
the ministerial tasks stipulated
in article 290 (6), 291 (4) and
292 (a) in the following limited
sense only. The statement is
accurate in so far as it
pertains in the context of the
actual legislative core
processes carefully designed
under Chapter 25. But I would
not advocate a narrow and rigid
construction of these relevant
laws, to constitutionally
exclude the Executive President,
who is invested with
constitutional authority to
maintain and execute the
Constitution of Ghana, from
engaging in any pre-legislative
activity, such as the work he
commissioned the CRC and the
CRIC to carry out, which
resulted in the submission of
proposals to the legislative
branch. I do not think our
current Constitutional
arrangement, justifies this
interpretative approach that
would deny a President the right
to set in motion any
pre-legislative activities that
may or may not eventually result
in a valid constitutional
amendment. Such engagements,
including the submission of
proposals, are in my view
clearly distinct from
Parliament’s core functions,
conferred by direct express
authority of effectuating
amendments in line with Chapter
25. I would hesitate to
characterize such interventions
as a usurpation of Parliament’s
distinct exclusive legislative
authority under Chapter 25 or a
calculated attempt to undo the
carefully designed architecture
under it. Indeed, Parliament,
the Council of State, the
Electoral Commission, the body
empowered under the Constitution
to hold referenda, in strict
accordance with the electoral
laws of this country, as well as
the citizens, who at one stage
or the other are entitled to
express their opinion on a
President’s proposals, through
various means, including the
active participation of their
representatives in Parliamentary
debates, are under no obligation
to accept such Presidential
initiated proposals without
question. To borrow Plaintiff’s
words, no President can stampede
Parliament or the people into
amending.
It does seem to me that
the Plaintiff’s other concerns
relates to the number of
amendments. Essentially, these
are questions outside the
purview of the courts
adjudicative authority, more so
because of the absence of
express constitutional
provisions on the scope of the
review, for example, the number
of amendments that may be
proposed at any given time or
even made, and how often these
may be effectuated. The
stringent mandatory
constitutional requirements
under Chapter 25, the respective
the Council of State,
Parliament, and the citizens via
a referendum are expected to
play, should provide a strong
buffer against unwarranted
interferences and arbitrariness,
and provide the internal
mechanisms to check abuse.
Conventions should be allowed to
develop in this area of our
constitutional law. But, even
more crucially, the necessary
constitutional amendments that
would tighten all the loose or
open ended constitutional
provisions, and provide for such
critical matters as who is
qualified to engage in front end
activities, who may initiate and
propose draft amendment bills
are perhaps called for. In the
words of the Plaintiff, the “when
who, how, how often and by whom”,
are crucial matters that should
not be left to chance,
conjecture or speculation.
One other concerns also in
relation to what he describes as
the “bundling of unrelated
entrenched provisions in an
amendment bill…” , which in any
event are not part of the
grounds on which this action is
predicated, are matters that, on
the given facts of this case,
are best addressed by the
legislature and the amendment
process.
The work of the CRC, whose
terms of reference was to:
collate views, on the operations
and workings of the
Constitution, identifying its
strengths and weaknesses,
articulate concerns from the
Ghanaian people, on amendments
that may be required, and make
recommendations for possible
amendments, which essentially
constitute free expression of
views, a healthy democratic
public engagement, and which
were to a large extent
implemented by the CRIC, are not
unconstitutional. The
recommendations and the
preparation of draft bills etc
should be recognised as nothing
more than proposals or
suggestions for amendment; that
are not automatically set to
ripen into amended provisions of
the Constitution. Parliament’s
acceptance of these as the raw
material, in a manner of
speaking, and the deployment of
its full panoply of powers-
express, implied and
incidental-under the Chapter 25
Constitutional framework, marks
the real beginning of its
crucial exclusive legislative
role in the actual amendment
process, as ordained under
Chapter 25 of the Constitution
and the Parliamentary oath.
Following from the answers that
I have provided, the next
important question for
determination is set out in
paragraph (1) of the
Plaintiff’s memorandum of
issues, namely,
“Whether the power granted to
the President under Article
278(1) to “appoint a commission
of inquiry into any matter of
public interest” includes the
power to establish a commission
of inquiry to review and propose
amendment bills to the
Constitution where the power to
review and propose amendment
bills to the Constitution has
been expressly, exclusively and
specifically conferred to
Parliament?”
This firstly calls for the true and
proper construction of the
expression “public interest”,
within the context of article
278(1), secondly, a
determination of whether the
work assigned to the CRC, per
its terms of reference, qualify
as, or constitute matters of
“public interest”, and thirdly,
an examination of the scope and
ambit of Commissions of
Inquiries as envisaged under
Chapter 23 of the 1992
Constitution, devoted to
Commissions of Inquiry. In other
words, we are going to explore
the nature and character of
Commissions of Inquiry.
On the first issue, article 295 (1) of
the 1992 Constitution has
provided a definition of the
term “public interest”. It
states:
“In this Constitution,
unless the context otherwise
requires “public interest”
includes any right or advantage
which ensures or is intended to
inure to the benefit generally
of the whole of the people of
Ghana.”
The Defendant
has also referred us to two
cases in which
this Honourable Court has
examined and adjudged the
meaning of the expression. These
are the cases of the Republic
v Yebbi & Avalifo [2000] SCGLR
149, cited with approval,
the case of R V Sussex
Confirming Authority; Ex Parte
Tamplin & Sons Brewery
(Brighton) Ltd. (1937) 4 All ER
@ page 108, where Lord
Hewart observed,
“If the condition is in
the interest of a considerable
part of the public, then it is
true to say that it is in the
interest of the public of which
that is a part. It would, I
think, be fantastic to argue
that a condition cannot be in
the interest of the public
unless it is in the interest of
every part of the public ... if
it is in the interest of the
Public concerned, then it is in
the interest of the public as a
whole.”
Again, in the case of The
Republic v Avalifo
(supra) money belonging to the
National Democratic Congress
(NDC) was stolen and one of the
issues that arose for
determination was “whether or
not the stealing of the moneys
belonging to a political party
is a crime against the state or
the public interest.”
This Court concluded that;
“ The stealing of moneys
belonging to a political party
was an offence against the
public interest as defined in
article 295 (1) of the 1992
Constitution, namely, ‘public
interest’ includes any right or
advantage which ensures or is
intended to inure to the benefit
generally of the whole of the
people of Ghana.” It was
significant that the word used
in defining public interest was
“includes” and not “means.” The
word “means” when used in
defining a word usually implied
that the meaning of the word was
restricted to the scope
indicated in the definition
section. However, the word
“includes” was often used in
order to enlarge the meaning or
phrase occurring in the body of
the statute; and when it was so
used those words or phrase must
be considered as comprehending
not only such things which the
interpretation clause declared
that they should include.
Therefore, the word “includes”
used in defining public interest
in article 295 (1) did not
restrict the meaning of public
interest as to the scope
indicated in the definition but
also to the interest of only a
section of the population.”
On the second question, I
have no doubt that the matters
the CRC sought to interrogate
under the Constitution Review
Commission of Inquiry
Instrument, 2010, C.I. 64, upon
a true and proper construction
of the article 278 of the 1992
Constitution, fall within the
definition of “public interest”.
In actuality, I think that they
are matters of extreme public
importance. I think in all
honesty, on the available
evidence, that the matters the
CRC were invited to and did
attend to, which matters have
already been spelt out, were
intended for altruistic
purposes- the political and
social benefit of the whole of
the people of Ghana-, whose
national Constitution, their
main governing political
document, has been in operation
for some two decades. I have no
evidence of any ulterior motive,
in other words, that the
assignment was, contrary, to the
noble ideals enshrined in the
preamble to our national
Constitution, not intended to
secure and solidify for us, “we
the people of Ghana”, that
“framework of government which
shall secure for ourselves and
posterity the blessings of
liberty, equality of opportunity
and prosperity.”
On the third and final
issue,
I found the Plaintiff’s
painstaking arguments at law so
pertinent I have again decided
to quote them in extenso.
1.
“A careful reading, not merely
of article 278(1)(a), but the
entire Chapter 23 (devoted to
‘Commissions of Inquiry’),
reveals the character of
commissions contemplated by the
Constitution.
a.
With respect to a commission’s inquiry procedure,
Article 281(2) states, “The
Rules of Court Committee
established under article 157 of
the Constitution shall, by
constitutional instrument, make
rules regulating the practice
and procedure of all
commissions of inquiry and
for appeals from commissions of
inquiry.”
b.
With respect to the nature
of the commission, Article
278(2) stipulates that,
c.
On the powers of a commission, Article 279(1)
provides that, “A commission of
inquiry shall have the powers,
rights and privileges of the
High Court or a Justice of the
High Court at a trial, in
respect of (a)enforcing the
attendance of witnesses and
examining them on oath,
affirmation or otherwise;
(b)
compelling the production of
documents; and(c)
the
issue of a commission or request
to examine witnesses abroad.”
d.
Regarding the functions of a commission, Article
280(1) provides that: “A
commission of inquiry shall
(a)make a full, faithful and
impartial inquiry into any
matter specified in the
instrument of appointment; (b)
report in writing the result of
the inquiry; and (c)furnish in
the report the reasons leading
to the conclusions stated in the
report.”
e.
Regarding the effect of a commission’s findings,
Article 280(2) states that,
“Where a commission of inquiry
makes an adverse finding against
any person, the report of the
commission of inquiry shall, for
the purposes of this
Constitution, be deemed to be
the judgment of the High Court;
and accordingly, an appeal shall
lie as of right from the finding
of the commission to the Court
of Appeal.” Further, “the right of appeal so conferred by Article 280(2) on
a person against whom a finding
has been made, “shall be
exercisable within three months
after the occurrence of either
of the events described in
clause (5) of this article or
such other time as the High
Court or the Court of Appeal
may, by special leave and on
such conditions as it may
consider just, allow.”
f.
Regarding witnesses before a commission, Article
283 states that, “A witness
before a commission of inquiry
is entitled to the same
immunities and privileges as if
he were a witness before the
High Court.”
A careful evaluation of the
commission’s inquiry procedures,
nature, powers, functions, the
effect of its findings as well
as the immunities and privileges
of witnesses appearing before
it, described supra,reveals
that what is contemplated in
Chapter 23 of the Constitution
is not an all-purpose
commissioning power but the
power to commission what is, in
effect, an independent inquiry
to investigate and establish the
truth relating to a specific
occurrence, affair or the
activities of an entity. Such an
inquiry would be considered
judicial or quasi-judicial in
nature.
This is why the rules of
procedure applicable to all
Article 278 commissions are
determined by the Rules of Court
Committee, a constitutional body
chaired by the Chief Justice
with a membership drawn from the
judiciary and the bar. This is
why adverse findings made
against a person by an Article
278 commission are deemed to
have the same juridical status
as a judgment of the High Court,
an appeal from which lies with
the Court of Appeal. This is why
witnesses are entitled to
privileges and immunities.
Plaintiff also respectfully draws the
Court’s attention to the
Commissions of Inquiry (Practice
and Procedure) Rules, 2010 C.I.
65 drawn by the Rules of Court
Committee. Therein, a commission
is characterized as having the
powers of the police for the
purposes of entry, search,
seizure and removal of a
document or an article relevant
to the inquiry of the Commission
(section 3). The rules discuss
the establishment of
investigation units (section
7(1)(a)), notice of hearing to a
person whose conduct is the
subject of the inquiry (section
(8)(c)), compellable witnesses,
admission of incriminating
evidence (section 14), etc. This
supports the proposition that
the commissions contemplated by
chapter 23 are quasi-judicial in
nature. In fact, it is hard, if
not impossible, to see how any
of these rules are relevant for
a Constitution Review
Commission. Suffice it to say
the C.I. 65 does not contemplate
a commission to review the
Constitution. How could it?
Plaintiff further submits that the
prevailing jurisprudence also
supports the characterization
that chapter 23 commissions are
quasi-judicial in nature.”
The Plaintiff further contended that
Justice Marful Sau’s decision in
the case of Republic v
Wereko-Brobbey and Mpiani
[2010].
settles firmly, the question of
the character, i.e. nature,
functions of Commissions of
inquiry as contemplated under
Chapter 23 of the 1992
Constitution.
Plaintiff further argued:
“ In that case, Justice Samuel
Marful-Sau (Justice of Appeal)
traced the constitutional
history and development of
Commissions of Inquiry by
analyzing the Memorandum on
the Proposal for a Constitution
of Ghana, 1968 and the
Proposals for the Establishment
of a Transitional (Interim)
National Government for Ghana,
1978…
Justice Marful- Sau described the
rationale behind the
establishment of Commissions of
Inquiry as stated in paragraph
301 of the 1978 proposals as
follows: “In
sum it is to accord the
President the opportunity to
cause investigations into
certain matters of public
importance by an impartial and
independent body. And because
the findings of such a body can
have serious legal consequences
for the persons affected thereby
including adverse impact on
their reputation in society,
such persons should be able to
challenge the soundness or
legality of such finding in the
courts of law, hence the
arrangement that such findings
be deemed to be a judgment of
the High Court, from which an
appeal shall be as of right to
the Court of Appeal.”
The learned Justice then
recites the Commissions of
Inquiries that had been
established thus far under the
1992 Constitution as: (1) The
Commission of Inquiry
(International Transfer of
Football Players) Instrument,
1999 established under C.I. 22
of 12th March, 1999; (2) The
Commission of Inquiry (Accra
Sports Stadium Disaster)
Instrument, 2001 established
under C.I. 34 of 11th May, 2001;
(3) The Commission of Inquiry
(Yendi Events) Instrument, 2002
established under C.I. 36 of
26th April, 2002; (4) The
Commission of Inquiry (Ghana@50)
Instrument, 2009 established
under C.I. 61 of 1stJune, 2009.
The learned Justice then
highlights the importance of
understanding the nature and
character of Commissions of
Inquiry as well as their
consequences and legal effect:
“Indeed by Article 280 of the
Constitution the reports of all
the above commissions were
deemed to be judgments of the
High Court and persons affected
by the adverse findings had the
constitutional right of appeal
to the Court of Appeal. It is
however a matter of judicial
notice that persons against whom
adverse findings were made by
the Commission of Inquiry into
the Yendi events and the
Commission of Inquiry into the
Accra Sport Stadium Disaster
were prosecuted in the High
Court, notwithstanding the clear
provisions of Article 280 of the
Constitution, which clearly
represent the aspirations of the
great men and women who
engineered our 1969, 1979 and
the 1992 Constitutions; the
aspiration being that findings
of commissions of inquiry should
never develop into criminal
trials.”
The learned Justice
concludes his judgment by
emphasizing “the need for us as
a nation to develop and advance
our constitutional dispensation.
I have tried to show in this
ruling the wisdom behind the
establishment of Presidential
Commissions of Inquiry under our
Constitution. It is to enable
the President appoint citizens
of the required expertise to
impartially and independently
investigate matters of national
importance, to evaluate the
performance of our public
institutions with a view of
ensuring and maintaining
efficiency and a high standard
in our public administration.
That exercise as rightly stated
in the constitutional proposals
of 1968 and 1978 could have
serious negative consequences on
the reputation of public office
holders in such institutions
investigated by such Commissions
of Inquiry, hence the need to
give such affected people the
right to challenge the soundness
of the findings. A citizen’s
right of appeal has always been
respected since ancient times.”
I do not think the
President envisaged that in
that purely civic public
engagement, as ordinarily
pertains in Commission hearings,
persons would be compelled to
appear to express their views
and opinions on the workings of
our Constitution, or that
adverse findings would be made
against persons who appeared
before the Commission or that
some would exercise their right
of appeal in respect of the
Commission’s findings and
conclusions. Also, that the
conclusions and recommendations
were to be equated to a judgment
of the High Court.
Consequently, speaking for
myself, a Commission of
Inquiry, qua Commission of
Inquiry under article 278 (1)
does not, in my respectful view,
appear in strict senso, to be
the most appropriate channel for
executing the task assigned to
the CRC. My opinion on the
impropriety of the use of a
Commission of Inquiry arises
purely from the true and
technical nature and character
of these Commissions, as earlier
analysed. In which regard,
impropriety, inappropriateness
or unsuitability, must not be
confused or equated with
unconstitutionality. I find that
all the relevant mandatory legal
requirements were fully met, in
respect of the setting up of the
CRC.
Thus, on the facts, I
would not declare as
unconstitutional, the C.I. 64
and the work executed there
under, based on the Plaintiff’s
main charge and argument that
the C.I. 64 avenue was
“misappropriated”, and
effectively and purposely
deployed “to usurp the powers
that the 1992 Constitution
expressly exclusively and
specifically conferred to
Parliament,” and to undo the
carefully designed Chapter 25
architecture. This comes against
the backdrop of my earlier
finding that pre- legislative
actions are not the exclusive
preserve of Parliament,
especially, when I have not
identified any evidence, express
or implied, in support of these
grave charges. No doubt, the
Commission was entrusted with a
national assignment of extreme
importance and sacredness. The
members appointed to this task,
among other things, per article
278 (3), were men and women of
high moral character, this being
the mandatory Constitutional
requirement. But, in my
respectful opinion, all these
matters per se, plus the
findings, recommendations and
indeed the work of the CRIG, I
have classified as
pre-legislative only, does not
place the work on a higher
footing than what I have earlier
tried to explain. The use of
C.I. 64, did not and does not
exempt the proposed amendments,
draft Bills, etc., from being
taken through the full rigours
of the Chapter 25 laws, neither
does it usurp or whittle down
Parliament’s core legislative
functions under Chapter 25. They
remain valid and sacrosanct. As
already noted, the draft Bills
etc., which I have classified as
pre-legislative, have not
transformed into amendments.
They will have to be taken
through the Parliamentary
amendment mill. The evidence
available, and all findings made
and conclusions I have drawn in
this action, does not support
the Plaintiff’s case.
Finally, the President’s
constitutional authority under
article 278(1) involves the
exercise of discretionary power.
I find no breaches or violations
of constitutional or other legal
requirements proven in the
exercise of this lawful
authority. Thus, once the
President, in the lawful
exercise of his discretionary
authority under article 278 (1),
was satisfied that the work of
the CRC, were matters of public
interest, was well- suited to be
addressed by a Commission of
Inquiry, I do not think I can
legitimately question the
exercise of that executive
discretionary decision in the
manner and terms requested, in
much the same way that in our
jurisprudence, the exercise of
judicial discretionary authority
cannot be interfered with,
except in those extreme or
exceptional cases, which have
been carefully circumscribed by
the decisions of this court. The
setting up of the CRC and
subsequently the CRIC, to fully
implement in strict accordance
the recommendations of the CRC,
in my respectful view, passes
the constitutionality test.
(SGD) G. T. WOOD (MRS)
CHIEF JUSTICE
BAFFOE-BONNIE JSC.-
on 14/10/2015, this court by a
majority of 5 to 2, dismissed
the claims of the plaintiff,
except for the first part of
claim 5 and the entirety of
claim 7, but reserved its
reasons for today. I have had
the benefit of reading the
illuminating opinion of the
Honorable Chief Justice, and my
very able brother Benin JSC and,
and I am in agreement with their
reasoning and conclusions. For
emphasis, however, let me add a
few thoughts of my own.
The facts of this case are
fairly simple and generally
uncontroverted.
On 11th January,
2010, under the hand of John
Evans Atta Mills, President of
the Republic of Ghana CI 64, was
gazetted. The preamble to the CI
read as follows
“Whereas the
President is satisfied that it
is in the public interest that
there should be appointed a
Commission of Inquiry into the
operations of the 1992
Constitution.
Now therefore in
exercise of the powers conferred
on the President by
paragraph(a), clause(1)of
article 278 of the Constitution,
this Instrument is made this 8th
day of January, 2010.”
The terms of reference for this
Commission were given in
paragraph 3 of the CI as
follows:
(a)
to ascertain from the
people of Ghana, their views on
the operations of the 1992
Fourth Republican Constitution
and, in particular the strengths
and weaknesses of the
Constitution;
(b)
to articulate the
concerns of the people of Ghana
on amendments that may be
required for a comprehensive
review of the 1992 Constitution,
and
(c)
to make
recommendations to the
Government for consideration and
provide a draft Bill for
possible amendments to the 1992
Constitution.
After a long period of public
sittings in Ghana and elsewhere,
and the receipt of a number of
memoranda, the ten member
commission submitted its report
to the President on 20th
December 2011. In June 2012 the
President issued a White Paper
on the CRC’s report. In the said
White Paper, the President
accepted most, but not all, of
the recommendations made by the
CRC.
In October 2012, the President
appointed a 5 member
Constitution Review
Implementation Committee (CRIC),
to as it were, ensure the
implementation of the
recommendations of the CRC that
the President had accepted in
its White Paper including the
drafting of appropriate bills.
In March 2014 the CRIC submitted
a DRAFT bill for the amendment
of the constitution to the
Attorney General.
Flowing from the work of the
CRIC, the Attorney General has
submitted 2 Bills to parliament
to kick start the processes for
the amendment of some entrenched
and non-entrenched provisions of
the constitution. These are,
(a)
Constitution
(amendment)(non-entrenched
provisions) bill, 2014, and
(b)
Constitution
(amendment)(entrenched
provisions) bill 2014.
The claim of the plaintiff (9 in
all), details of which has been
given in the CJ’s opinion, in
sum, question the
constitutionality of the CRC and
the CRIC, accuses the President
of usurping Parliament’s
exclusive power to amend the
Constitution provided by Article
289 of the Constitution and
calls for the nullification of
the two bodies and their works.
THE CRC.
I am of the view that the
plaintiffs beef with the setting
up of the Constitutional Review
Commission (CRC) as being
unconstitutional comes from a
very narrow and restrictive
reading of Article 278 of the
Constitution and therefore
misplaced.
The article permits the
President to set up a committee
to inquire into any matter which
the President feels is of public
interest. Amending the
Constitution definitely falls
under this category as it is a
matter of public interest. This
has been adequately addressed by
the Benin JSC in his opinion and
so I will not spend any time on
it.
THE CRIC.
The CRC’s mandate included
3. To make recommendations to
the Government for consideration
and provide a draft Bill for
possible amendments to the 1992
Constitution,
And the CRIC’s mandate included
To undertake the
preparatory steps, including
drafting the appropriate bills
necessary to implement those
CRC’s
recommendations.
These two mandates have been
construed by the plaintiff as a
blatant usurpation of the role
of Parliament in the whole
process of amendment of the
Constitution and therefore
unconstitutional.
Again, I find the construction
put on the Articles 290 and 279
on the amendment process very
narrow and restrictive. And I
believe plaintiff’s wrong
conclusion is based on a
mis-appreciation of the whole
architecture of the making and
amending of constitution. This
mis-appreciation is borne out by
plaintiff’s submission on page 4
paragraph 6 of his process filed
on 22/6/2015. The plaintiff
submitted thus;
“It is
therefore useful to bifurcate
the amendment process into the
frontend activities that
culminate in the passage of an
amendment bill and the backend
assent activity, which is a mere
formality to promulgate the
amendment bill. Clearly, the
frontend process entails
monitoring the effects of
constitutional provisions,
interacting with citizens and
other civil society groups,
crystallization of ideas,
originating and drafting bills,
referring the bills from the
speaker of Parliament to the
Council of State for advice,
notice (gazette), time, reading,
and passage requirements. By
careful, deliberate and explicit
design, the President is not
assigned any constitutional role
in this frontend amendment
process. Indeed, the President’s
only constitutional role in the
amendment process is at the
backend, where he performs a
mandatory assent assignment.
Plaintiff believes, as argued
infra, that the framers had
compelling governance,
democratic, prudential and
historical reasons for excluding
the president from a frontend,
engineering role in the
amendment process.”
The plaintiff got it right with
the President’s role in what he
describes as the backend assent
activity but lumping the process
of monitoring constitutional
provisions, interacting with
citizens and other civil society
groups, crystallization of
ideas, originating and drafting
bills, referring the bills from
the Speaker of Parliament to the
Council of State for advice,
notice (gazette), time, reading
and passage requirements as
frontend, just to exclude the
President, is disingenuous.
Using plaintiff’s analogy, the
amendment process should be
divided into frontend, middle
end, and backend. The
requirement of presidential
assent is obviously backend. But
what the plaintiff refers to as
frontend should be further
divided into frontend, and, for
want of better expression,
middle end. The frontend would
be the activities leading to the
drafting of the bill and the
middle end will be the
activities that take place in
Parliament after the bill has
been sent there. To expatiate
further, while the frontend will
involve (again using the
plaintiffs own words) the
monitoring of the effects of
constitutional provisions on the
citizenry, interacting with
citizens (and this could be done
by parliamentarians interacting
with their constituents) and
other civil society groups,
crystallization of ideas,
originating and drafting bills,
the middle end will be the
activities in Parliament like
introduction of the bill,
reference to the Speaker,
notification i.e. gazetting,
reading and observance of time
etc.
It is true that Parliament has
exclusive jurisdiction over the
activities of the middle end and
any attempt by anybody,
including the presidency or
executive, to interfere in these
will be resisted by this court.
However, the activities
described as frontend in this
piece are not reserved to
Parliament as the plaintiff will
want us to rule. The activities
leading to the drafting of bills
and placement of same before
Parliament to signify the
beginning of the middle end
process are administrative and
do not form part of the
amendment process spelt out
under Articles 289,290 and 291
of the Constitution.
Article 93(2) of the
Constitution provides
Subject
to the provisions of this
Constitution, the legislative
power of Ghana shall be vested
in Parliament and shall be
exercised in accordance with
this Constitution.
Article 106 provides
(1)The
power of Parliament to make laws
shall be exercised by bills
passed by Parliament and
assented to by the President
(2)No
bill, other than such a bill as
is referred to in paragraph(a)
of article 108 of this
Constitution, shall be
introduced in Parliament
unless….
(a)
It is accompanied by
an explanatory memorandum
setting out in detail the policy
and principles of the bill. The
defects of the existing law, the
remedies proposed to deal with
those defects and the necessity
for its introduction
108 provides
Parliament shall not,
unless the bill is introduced or
the motion is introduced by, or
on behalf of the President…..
The cumulative meaning of these
provisions and even more, is
that Parliament, is the only
institution charged with the
making of laws and for that
matter the amendment of the
constitution. However, this
exclusive duty is called into
action with the introduction of
Bills onto the floor of
Parliament. Collation of views,
crystallization of ideas and the
drafting of proposed bills, are
not part of the exclusive duties
of Parliament so as to attract
the accusation of usurpation of
the powers of Parliament.
As stated earlier the CRC’s 3rd
mandate was;
(c) To make
recommendations to the GOVRNMENT
for consideration and provide a
draft bill for possible
amendments to the 1992
constitution.
The CRIC on the other hand had
the mandate to undertake
preparatory steps, including
drafting the appropriate bills
necessary to implement those
CRC’s recommendations that the
President had accepted.
In his submissions filed
on22/6/2014, at page, 6
paragraph (vi) the plaintiff
wrote
“In March
2012, it was reported that the
CRIC had submitted a draft bill
for the amendment of the
Constitution to the Attorney
General”
Reading the mandates and
plaintiffs own submission, I
seriously do not see what the
plaintiff is complaining about.
The use of words and phrases
like “to provide a draft bill
for possible amendments” and
“undertake preparatory steps
including drafting the
appropriate bills”, should
inform the plaintiff that the
activities of the CRC and the
CRIC are preparatory and
administrative and do not
infringe on the exclusive power
of Parliament to amend the
Constitution.
Historically, under the 1992
constitution, all bills that
have been passed into laws,
including the bills that led to
the two previous amendments of
the Constitution, have been sent
to Parliament under the hand of
the Attorney General. And the
current bill for the amendment
of the Constitution went to
Parliament under the hand of the
Attorney General. They may or
may not have taken into
consideration the
“recommendations” of the CRC or
the “draft bill” from the CRIC,
but it is still the Attorney
General’s handiwork, and is
subject to the amendment
procedure as provided in the
Constitution. The bills for the
amendment of the entrenched and
non-entrenched provisions of the
Constitution are going to be
subjected to the very rigorous
amendment procedure as provided.
Some or all of the
recommendations as found in the
Bill sent to Parliament under
the hand of the Attorney General
shall stand or fall based on the
debates that take place in
Parliament pursuant to their
exclusive jurisdiction granted
them by article 289 of the
Constitution. And it would not
matter whether or not they form
part of the recommendations of
the CRC or CRIC.
To conclude, I am of the
considered opinion that the
steps taken by the President so
far, i.e. the appointments of
the CRC and the CRIC, can only
be said to be preparatory and
has not in any way interfered
with Parliament’s exclusive
legislative power granted by
Article 93(2) and exclusive
power to amend the Constitution
under article 289. I will
therefore dismiss plaintiff’s
claim, save the first part of
relief 5 and the entirety of
relief 7.
(SGD) P. BAFFOE- BONNIE
JUSTICE OF THE SUPREME COURT
GBADEGBE
JSC:
On October 14, 2015 we
pronounced judgment in the
matter herein with our reasons
therefore being reserved. I now
proceed to provide the reasons
for which I came to that view of
the matter which was announced
in open court on the said date.
I have had the advantage of
reading beforehand in draft the
reasons about to be read this
morning by my worthy brother,
Benin JSC and I am also in
agreement for the reasons
therein provided that the action
herein be dismissed save for the
first part of relief 5 and the
entirety of relief 7. I also
acquiesce with him regarding the
issues for our determination in
the matter herein. As the action
herein raises issues of public
interest, I wish to add a few
words of my own by way of
concurrence.
In my view, the plaintiff’s
action substantively touches and
concerns matters which are
preparatory to the exercise by
Parliament of its legislative
power to amend provisions of the
1992 Constitution. The facts on
which this action turns, which
are not in dispute relate to the
establishment by the President
of a Commission of Inquiry under
CI 64 for the purpose of among
others receiving from the public
proposals for amendments to the
constitution and his subsequent
acceptance of some of the
recommendations of the said body
as well as the setting up of a
committee, Constitutional Review
Implementation Committee, (CRIC)
to draft appropriate bills
necessary to implement the
recommendations accepted by him
in order to have them laid
before Parliament.
It appears from a consideration
of the above steps put in motion
by the President that they do
not come within the scope of
article 289(1) and other
provisions in chapter 25 of the
constitution by which power is
conferred on Parliament to amend
provisions of the constitution.
Although the end result of the
cumulative endeavours initiated
by the President is the
formulation of bills for the
consideration of Parliament
under article 289(1) such acts
do not in my opinion have the
effect contended by the
plaintiff of constituting a
usurpation by the President of
the power of Parliament to amend
provisions of the Constitution.
The plaintiff has in these
proceedings pressed on us the
view that because by the
provisions of article 289(1) the
power to amend the provisions of
the constitution is conferred
exclusively on Parliament
without any mention of the
executive, the steps herein
before alluded that were
initiated by the President
resulting in the preparation of
bills to be laid before
Parliament for consideration in
the exercise of its power to
amend the constitution
constitutes interference with
the work of the legislature and
must be nullified. But that view
seems to construe article 289(1)
in isolation instead of reading
it as part of a functioning
whole document. The approach
that should be employed when
considering questions of
interpretation of the
constitution was set out by
this court in the case of NMC
v Attorney General [2000]
SCGLR 1 at 11 when Acquah JSC (
as he then was) expressed
himself in the following words:
“But to begin with it is
important to remind ourselves
that we are dealing with our
national Constitution, not an
ordinary Act of Parliament. It
is a document that expresses our
sovereign will and embodies our
soul. It creates authorities and
vests certain powers in them. It
gives certain rights to persons
as well as bodies of persons,
and imposes obligations as much
as it confers privileges and
powers. All these privileges and
powers must be exercised and
enforced not only in accordance
with the letter, but also with
the spirit, of the Constitution.
Accordingly, in interpreting the
Constitution, care must be taken
to ensure that all the
provisions work together as
parts of a functioning whole.
The parts must fit together
logically to form a rational,
internally consistent framework.
And because the framework has a
purpose, the parts are also to
work together dynamically, each
contributing something towards
achieving the intended goal.
Each provision must therefore be
capable of operating without
coming into conflict with any
other.”
It is therefore clear that in
interpreting article 289(1), we
should not be limited only to
the words by which it is
expressed but go through the
entire constitution to find out
if there are other provisions
that affect it particularly when
the power conferred on
Parliament is expressed as
follows:
“Subject to the provisions of
this Constitution, Parliament
may, by an Act of Parliament,
amend any provision of this
Constitution.”
The meaning of the opening
words of article 289(1) namely “subject
to” have been
authoritatively pronounced by
this court in previous decisions
of this court including
Edusei (No2) v The
Attorney-General [1998-99]
SCGLR 753at 791. Examining the
words “subject to “in the
context of article 289 (1) on
the point, the power conferred
on Parliament to amend the
constitution must be read to
mean that the scope of the power
conferred by the article cannot
be construed without reference
to other parts of the
constitution. It is indeed, a
recognition that there are other
parts of the constitution which
are concerned with the power to
amend the constitution. As the
words by which the power to
amend is conferred on Parliament
itself begins with a caveat, so
to say, one must read the
entire constitution in order to
find out whether there are any
limitations on the power
granted to Parliament before
deciding if that power is
exclusive in nature. A careful
reading of the constitution
reveals that the President is
enabled by article 106(14) to
have bills introduced on his
behalf in Parliament. This power
is separate from the power
conferred on him under articles
108 and 179 in regard to the
initiation of financial bills.
As the power conferred on him
under article 106 (14) is
general in nature, it can be
utilized by the President for
the purpose laying proposals for
constitutional amendment in the
nature of bills before
Parliament for consideration. In
taking any such step, the
President will be utilizing a
legitimate means to achieve an
end that is within the scope of
the constitution. It repays to
say that the power conferred on
Parliament under article 289(1)
is part of its legislative power
and should not be read as
though it is a provision that
exists on its own. When so read
as part of a single document
whose several provisions have to
work together to achieve a
common purpose then there
appears to be no force in the
invitation urged upon us by the
plaintiff to accept the position
that the power conferred on
Parliament by article 289(1) and
indeed, Chapter 25 is excusive
to Parliament. To accede to the
contention of the plaintiff
would have the effect of various
parts of the constitution
singing not in harmony but
discordantly like a choir
without a leader and lead to
absurdity.
I think that a careful
consideration of the complaint
which forms the basis of the
plaintiff’s claim reveals that
there has so far not been any
step taken by the President that
can remotely be said to have an
attribute that comes within the
designation of the exercise of
legislative power within the
scope of the existing
constitutional framework. On the
other hand, what has happened is
that views have been collated by
the Commission of Inquiry set up
under CI 64 by virtue of the
power conferred on the President
under article 278 to “appoint
a commission of inquiry
into any matter of public
interest” and steps
subsequently taken thereon to
formulate the recommendations
accepted by the constituting
authority into bills for the
consideration of Parliament. I
do not think for a moment that
there can be any controversy
over the fact that the
constitution being the
fundamental law of the land from
which not only the powers of
government are derived but
provides the means by which such
powers are to be exercised, any
step taken for the purpose of
bringing about amendments to the
existing provisions is a matter
which comes within the
definition of “public interest”
in article 295 of the
constitution, which definition
we are bound to give effect
to.The determination of the
question whether or not the
President is “….satisfied
that a commission of inquiry
should be appointed” once
the issue to which it relates is
in the public interest is a
political question that we
cannot inquire into.
Then there is the question about
the commission of inquiry
appointed under CI 64 not
exercising powers that are
quasi-judicial in nature and
therefore unconstitutional.
Reliance in this regard is
placed on articles 279, 280, 281
and 283 of the constitution by
the plaintiff, but the
contention urged on us loses
sight of the fact that reading
chapter 23 in its entirety, it
is plain that the power
conferred on commissions of
inquiry recognizes that not all
such commissions would make
adverse findings against persons
and for that matter are not
quasi-judicial in nature.
Reference is made to article 280
(2) which provides:
“Where a commission of
inquiry makes an adverse finding
against any person, the report
of the commission of inquiry
shall, for the purpose of this
constitution, be deemed to be
the judgment of the High Court;
and accordingly, an appeal shall
lie as of right from the finding
of the commission to the Court
of Appeal.”
In view of the words by which
the above provision is
expressed, the contention urged
on us to the contrary by the
plaintiff for the purpose of
declaring the commission of
inquiry set up under CI 64 as
unconstitutional is in my
opinion not derived from a fair
reading of the constitution and
must be rejected. The
recognition by the constitution
itself requires us to reject any
narrow approach that will defeat
the clear legislative intent
that is clearly a departure
from the historical antecedents
regarding commissions of inquiry
that were set up before the
coming into being of the 1992
Constitution. We cannot suppress
the intention of the lawmakers
by calling in aid previous
constitutional arrangements
which are inapplicable within
the framework of the 1992
Constitution.
The correct interpretation is
that where the proceedings of
the commission of inquiry set up
by the President are not
adversarial in nature as no
doubt is the situation in
regard to the commission of
inquiry set up by the President
under CI 64, then the provisions
relating to the right of appeal,
the power to compel attendance
before it and immunity of
witnesses and compelling the
production of documents and the
like which are characteristics
of a quasi-judicial tribunal
will be inapplicable. In coming
to this view of the matter, I
have not disregarded the
decision of the High Court in
case Number ACC 39/2010 entitled
The Republic v Charles Wereko
Brobbey and Another, an
unreported judgment of Marful
Sau (JA) dated 10 August, 2010
which was cited to us in the
written brief submitted by the
plaintiff. Although the said
decision is of persuasive
effect, I am unable to agree
with the statement of law
contained in the said judgment
for there as on that the learned
judge did not advert his mind to
the clear effect of article 280
(2) before reaching his opinion
on the nature of commissions
that may be constituted by the
President under article 278 of
the Constitution, a default
which brings the judgment within
the category of judgments that
are “per incuriam”.
I may pass onto add that as the
constitution has not
specifically prohibited the
steps which have been taken by
the President for the purpose of
laying before Parliament bills
for constitutional amendment
(what may be referred to as the
“letter” of the constitution),
the question that arises there
from is whether such steps have
impliedly usurped the power to
amend the constitution which is
the exclusive preserve of
Parliament? I think this
question relates to the “spirit”
of the constitution. If it does
then it is an affront to the
constitution in that it erodes
the doctrine of separation of
powers which is at the heart of
our constitutional democracy,
and only then can we accede to
the demands contained in the
writ before us for their
nullification. In view of the
matters discussed earlier in
this delivery, the said question
receives a negative answer and I
think that the situation that we
are confronted with in this
action may be likened to that
which the Supreme Court of the
United States had to determine
in the case of MC
CULLOCH v STATE OF MARYLAND,
17 U.S. 316 (1819), which raised
for the determination of the
Supreme Court of the United
States, the question whether
Congress had the power to
establish a national bank and
if it had the power so to do,
whether the state of Maryland
could levy taxes on the bank. In
its decision, the court held
that Congress did have the power
to make the law and that the
state of Maryland did not have
the power to levy taxes on the
bank. This case appears to have
provided the court with the
opportunity to pronounce on what
implied as opposed to specific
powers meant. Delivering the
judgment of the court, Marshall
CJ made a speech, which provides
us with some useful guidance
when he observed as follows:
“We admit as all must admit,
that the powers of the
government are limited, and that
its limits are not to be
transcended. But we think the
sound construction of the
constitution must allow to the
national legislature that
discretion, with respect to the
means by which powers it confers
are to be carried into
execution, which will enable
that body to perform the high
duties assigned to it, in the
manner most beneficial to the
people. Let the end be
legitimate, let it be within
the scope of the constitution,
and all means which are
appropriate, which are plainly
adapted to that end, which are
not prohibited, but consist with
the letter and spirit of the
constitution, are constitutional.”
See also: US v Gettysburg
Electric Railway Co, 160 US 668,
(1896)
I think that if, indeed the
President can cause bills to be
laid on his behalf in Parliament
as provided for in articles
106(14), 108 and 179 then he has
the implied and necessary power
as provided for in article
297(c) to have an informed
opinion on any matter to which
such a bill might relate and
merely collating views and
presenting them in the form of
bills to amend the constitution
to the body properly clothed
with the power so to do under
the constitution cannot by any
stretch of imagination be said
to be in breach of article
289(1). In my opinion, collating
views from the public and
stakeholders enhances
participation in the processes
leading to law-making by persons
other than politicians and is
good for democracy. It is
important also to observe that
the President has a
responsibility under article
58(2) of the constitution for
the “execution and
maintenance” of the
constitution and the steps taken
so far by him, which may be
described as in their nature
only preparatory to the exercise
by parliament of its legislative
power under article 289(1) come
within the scope of article
58(2). The recommendations which
might be merged in bills are
merely proposals to the
legislature and are just like
any other bill which might be
placed before it in relation to
any subject matter as has been
the case in many instances where
bills laid before the
legislature have been the
product of deliberation by
stake-holders.
Before bringing this delivery
to a close, I wish to make
reference to a brief submitted
by Alexander Hamilton in 1791
entitled “Opinion on the
Constitutionality of the Bank of
the US.”
“That every power vested in a
government is in its nature
sovereign, and includes, by
force of them, a right to employ
all the means requisite and
fairly applicable to the
attainment of the ends of such
power, and which are not
precluded by restrictions
specified in the Constitution,
or not immoral, or not contrary
to the essential ends of
political society.
This
principle, in its application to
government in general, would be
admitted as an axiom, and it
will be incumbent upon those who
may incline to deny it, to
prove a distinction, and to
show that a rule which in the
general system of things is
essential to the preservation of
social order is inapplicable to
the United States.”
The above words in my opinion
provide us with a proper
understanding of what is meant
by implied powers as provided
for in article 297(c) of the
constitution in the following
words:
“In this Constitution and any
other law-
(c) where
a power is given to a person or
authority to do or enforce the
doing of an act or thing, all
such powers shall be deemed to
be also given as are necessary
to enable that person or
authority to do or enforce the
doing of the act or thing”
The above provision is
substantially re-enacted in the
Interpretation Act, (Act 792) of
2009 in section 21 (3) thus:
“Where a power is given to a
person or an authority to do an
act or a thing, or enforce the
doing of an act or a thing, that
power includes any other powers
that are reasonably necessary to
enable that person or authority
to do that act or thing, or to
enforce the doing of that act or
thing, or are incidental to the
doing or enforcement of that act
or thing.”
Turning to the claim before us
for determination, I am of the
view that as the question on
what particular provisions of
the constitution should be
amended is purely a matter for
Parliament to decide, it does
not appear that the letter and
spirit of the constitution on
which this action has been
planked has been violated in any
manner to warrant the exercise
of the jurisdiction conferred on
us under article 2(1) of the
constitution.
.
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
BENIN, JSC:-
This
case raises questions that
border on the principle of
separation of powers, whether in
terms of amendment to the 1992
Constitution the President and
for that matter the Executive
branch of Government has any
right to initiate moves or take
steps to amend the Constitution,
and whether such initiative by
the President violates the
exclusive right that the
Constitution has given to
Parliament to enact an Act to
amend the Constitution. If the
plaintiff’s argument is
stretched to its logical limits,
it means that apart from
Parliament exercising the power
conferred on it by Article 289
of the Constitution, no other
person or institution has any
right to initiate or commence
steps to amend the constitution.
The said
Article 289 provides:
(1)
Subject to the
provisions of this Constitution,
Parliament may, by an Act of
Parliament, amend any provision
of this Constitution.
(2)
This Constitution
shall not be amended by an Act
of Parliament or altered whether
directly or indirectly unless-
(a)
the sole purpose of
the Act is to amend this
Constitution; and
(b)
the Act has been
passed in accordance with this
Chapter.
The
plaintiff is saying that all the
steps taken by the President of
the Republic of Ghana aimed at
amending the Constitution are
contrary to the letter and
spirit of the Constitution
especially Article 289, supra.
In short, the plaintiff is
saying the President is
usurping, if he has not already
usurped, the power exclusively
conferred upon Parliament by the
Constitution. The various steps
taken by the President with the
view to amending the
Constitution are the following:
(i)
The President invoked the
power conferred upon him by
Article 278(1) of the
Constitution and set up a
Commission of Inquiry,hereafter
called the Commission, to gather
views from Ghanaians on
proposals to amend the
Constitution. The enactment
under reference is the
Constitutional Review Commission
of Inquiry Instrument, 2010,
(C.I. 64). The terms of
reference of the Commission were
the following: (a) to
ascertain from the people of
Ghana their views on the
operations of the 1992
Constitution and, in particular
the strengths and weaknesses of
the Constitution; (b) to
articulate the concerns of the
people of Ghana on amendments
that may be required for a
comprehensive review of the 1992
Constitution; and (c) to make
recommendations to the
Government for consideration and
provide a draft bill for
possible amendments to the 1992
Constitution.
(ii)
The Commission completed
its task and submitted its
report to the President. Upon
receipt of the report, the
President caused a White Paper
to be issued in accordance with
the provisions of Article 280(3)
of the Constitution, signifying
a general acceptance of the
report, with some changes
though.
(iii)
In order to implement the
recommendations covered by the
White Paper, the President set
up a Constitution Review and
Implementation Committee (CRIC),
hereafter called the Committee.
The Committee has since
submitted some draft bills to
the Government whch in turn has
passed them on to Parliament to
commence the amendment process
envisaged by Articles 289(1),
290(2) and 291(1) of the
Constitution.
The
plaintiff contends that none of
these steps could be said to be
legal having regard to the
provisions of Chapter 25 of the
Constitution which deals with
amendments to the Constitution,
whereby Parliament is given sole
responsibility to initiate and
take all steps it deems
necessary aimed at amending the
Constitution in its own
appointed time. The President
can neither decide when an
amendment to the Constitution
should take place, nor dictate
the pace or steps to follow to
achieve the purpose. It is
largely for these reasons that
the plaintiff came to this court
seeking these reliefs:
(1)
A declaration that the
Constitution Review Commission
of Inquiry Instrument, 2010,
C.I.64 is null, void and of no
effect as it contravenes the
letter and spirit of Article
289(1) of the 1992 Constitution,
in that the effect, if not the
intended purpose, of C.I. 64 is
to usurp powers that the 1992
Constitution expressly,
exclusively and specifically
conferred to Parliament.
(2)
A declaration that the powers
granted to the President under
Article 278(1) to ‘appoint a
commission of inquiry into any
matter of public interest’ does
not include the power to
establish a commission to review
and propose amendment bills to
the Constitution where such
powers to review and propose
amendment bills to the
Constitution have been
expressly, exclusively and
specifically conferred to
Parliament.
(3)
A declaration that Article
278(1) does not grant the
President an all-purpose
commissioning power but only
gives him the power to
commission an independent
inquiry to investigate and
establish the truth relating to
an entity’s affairs, activities
or some specific occurrence that
is in the public interest.
(4)
A declaration that the
Constitution Review
Implementation Committee
(CRIC)set up by the President to
finalize amendment bills for
both the entrenched and
non-entrenched provisions is
alien to the Constitution and
any and all of its activities
directed at finalizing amendment
bills that touch on any and all
aspects of the Constitution,
whether entrenched or
non-entrenched, are unlawful,
unconstitutional, impermissible,
null, void and of no effect.
(5)
A declaration that the 1992
Constitution can be amended only
in accordance with the express
provisions of Chapter 25 of the
Constitution and that the
President’s role in any such
constitutional amendments is
limited to the ministerial tasks
stipulated in Article 290(6),
291(4) 292(a).
(6)
A declaration that Parliament’s
power to amend the Constitution
as stipulated in Article 289(1)
is plenary and exclusive.
(7)
A declaration that Parliament’s
power to amend the Constitution
as stipulated in Article 289(1)
cannot be delegated to or
usurped by the President.
(8)
An order directing the
President, the Chairman and
Members of the Constitution
Review Commission, the Chairman
and Members of the CRIC, the
Attorney-General, their
deputies, agents or employees or
any other servant or agent of
the Republic to permanently
cease and desist from taking any
actions that seek to amend or
otherwise disturb the
Constitution in so far as such
actions are inconsistent with
Chapter 25 of the Constitution.
(9)
An immediate order directing the
President, The Chairman and
Members of the CRC, the Chairman
and Members of the CRIC, the
Attorney-General, their
deputies, agents, oe employees
or any other servant or agent of
the Republic to cease and desist
from taking any actions that
seek to amend or otherwise
disturb the Constitution, in so
far as such actions are
inconsistent with chapter 25 of
the Constitution, during the
pendency of this litigation.
The
plaintiff neatly summed up his
case in paragraph 30 of his
statement of case in these
words: ‘In brief, the
Plaintiff’s case is that the
Constitution can only be amended
by terms. Parliament is the sole
body that can initiate, consider
and propose amendments to the
Constitution. Parliament’s power
to amend the Constitution is not
only plenary and exclusive but
also cannot be delegated to or
usurped by the President, the
Commission (CRC) or the
Committee (CRIC). The
President’s role in
constitutional amendment is
limited to the ministerial task
of giving assent to bills
properly passed by Parliament.
The President has no power to
set up a commission to initiate
amendments or draft amendment
bills to the Constitution. To
the extent that the President
has usurped Parliamentary powers
and misappropriated Article
278(1) to traverse the amendment
architecture emplaced by Chapter
25 of the Constitution, it is
the Plaintiff’s case that C.I.
64 setting up the Constitution
Review Commission, all actions
taken by the Commission and all
its actions are unlawful,
unconstitutional, impermissible,
null, void and of no effect.’
I intend
to discuss the issues raised
under two broad headings,
namely:
a.
Whether the President has the
right or power to propose or
take steps, including draft
bills, for the amendment of the
Constitution.
b.
If the answer to the above is
positive, whether such steps may
include the setting up of a
commission of inquiry under
Article 278(1) of the
Constitution, and yet another
committee to implement the
conclusions contained in the
White Paper issued following the
commission’s report.
We should
not lose sight of the fact that
Parliament’s power to pass an
Act to amend the Constitution is
subject to other provisions of
the Constitution. I take note of
the plaintiff’s interesting
argument that “when
Article 289(1) provides that
‘Subject to the provisions of
the Constitution, Parliament
may, by an Act of Parliament,
amend any provision of this
Constitution’, it simply means
the Constitution has conferred a
discretionary power to amend the
Constitution to Parliament
subject to Parliament exercising
that power in conformance to the
amendment architecture
stipulated by the Constitution
and in a manner that is not
inconsistent with the
Constitution.”
I
consider plaintiff’s argument on
this too narrow and restrictive,
and it does not accurately
express the purpose of the
provision. The first part of
Article 289(1) is very clear
that the exercise of this
legislative function of
Parliament is subject not only
to the provisions of Chapter 25
but also to all other provisions
of the Constitution. Subject to
other provisions of the
Constitution embraces not only
those which bear on the internal
workings of Parliament in the
exercise of its legislative
power which are exclusive to
Parliament, but also matters
that are preparatory to the
passage of bills by Parliament,
in which others outside
Parliament may partake. This is
not to say that the provision is
silent or equivocal about
Parliament’s exclusive right to
pass Acts. What it entails is
that there are aspects of
law-making process which are not
necessarily in the exclusive
domain of Parliament. The most
immediate and relevant one that
one may recall is the power
conferred on the President under
Article 106(14) to propose bills
to Parliament either by himself
or by somebody else on his
behalf.This power is a general
one vested in the President to
introduce bills in Parliament.
Besides, Article 107 also
enables the President to
introduce finance bills to the
house. These are all examples of
the inter-institutional
collaboration and framework that
exist under the Constitution.
Therefore one is put on the
inquiry when Article 289(1)
makes the passage of an Act to
amend the Constitution subject
to other provisions of the
Constitution.
In my
opinion the framers of the
Constitution did not intend to
curtail the President’s right to
introduce bills into Parliament
under Chapter 25 of the
Constitution. The reasons are
not far to seek. Article 289(1)
gives the power to Parliament to
pass an Act to effect a
constitutional amendment. The
Constitution duly acknowledges
that an Act of Parliament is not
the first step in the process of
amending the Constitution.
Article 290(2) and Article
291(1)provide that a bill may be
introduced into Parliament
proposing amendment to an
entrenched and non-entrenched
provision respectively before
Parliament may proceed with the
process of amendment. Whilst the
Constitution is unequivocal in
stating in Article 289(1) that
only Parliament may pass an Act
to amend the Constitution, it is
completely silent as regards who
has the right to introduce an
amendment bill to Parliament
under Article 290(2) and 291(1).
In my opinion, the framers of
the Constitution left this open
and fluid, so that Parliament
should be able to receive an
amendment bill from various
sources, especially from the
President who in other parts of
the Constitution has that
working relationship with
Parliament. And in such an
important assignment or exercise
which affects all the sovereign
people of Ghana, it is not
unreasonable that these
provisions leave room for other
groups or persons to make an
input, as part of the
preparatory steps, including
draft bills, in the
constitutional amendment
process. If it was intended that
any bill for amendment should
only come from Parliament
itself, clear words to that
effect would have been used in
Articles 290(2) and 291(1), just
like in Article 289(1).
In my
opinion, in the context of
proposing bills for
consideration of Parliament to
amend the Constitution, Article
289(1) should be read in
conjunction with Articles 290(2)
, 291(1) and 106(14). In reading
provisions of the Constitution,
the Court should take account of
twilight zones where two persons
or bodies, for instance the
President and Parliament, may
act concurrently. Article 289(1)
does not, expressly or even by
necessary implication, say that
only Parliament may propose
bills to amend the Constitution,
it only empowers Parliament to
enact Act of Parliament to the
exclusion of all others to amend
the Constitution. And Article
106(14) places no limit on the
types of bills the President may
introduce to Parliament; the
only limitation of course is a
bill that Parliament itself is
prohibited from passing into
law. However, in order to give
full effect to the amendment
procedure, the President may
invoke the provisions of Article
290(2) and 291(1) to introduce a
constitutional amendment bill to
Parliament, in order that
Parliament may deal with it
under Chapter 25.There is no
provision which directly or
indirectly prohibits the
President from introducing a
constitutional amendment bill to
Parliament, so the court should
not import one into Chapter 25.
The
plaintiff’s argument is founded
on technical and insubstantial
points which do not advance the
purpose of the Constitutional
provision under consideration.
As observed by Justice Louis D.
Brandeis in his dissenting
opinion in the case of
Milwaukee Social Democratic
Publishing Co. vs. Burleston 255
U.S 407 at 431 (1921)“the
Constitution deals with
substance, not shadows”.
The plaintiff’s argument was
largely influenced by what he
perceived to be the attempt by
the President, and for that
matter the Executive branch of
government to usurp the power
conferred exclusively on
Parliament to legislate
amendment to the Constitution.
Such an action, in his opinion,
was contrary to the doctrine of
separation of powers which
should not be countenanced by
the Court for fear the President
might become despotic.
The
Constitution of the United
States of America appears to be
the first in which the doctrine
of separation of powers was
actualized. The renowned
American, Madison wrote in
The Federalist No. 48 in
1787 this significant piece on
the doctrine of separation of
powers as conceived under the
American Constitution: “…….the
powers properly belonging to one
of the departments ought not to
be directly and completely
administered by either of the
other departments. It is equally
evident that none of them ought
to possess, directly or
indirectly, an overruling
influence over the others in the
administration of their
respective powers……..The most
difficult task is to provide
some practical security for
each, against the invasion of
the others……..” The
1992Constitution has sought
carefully to preserve this
doctrine, whilst at the same
time ensuring that there is a
certain amount of co-operation
between the key institutions of
state to ensure good governance
through some form of checks and
balances. That ensures the
beauty of our democratic
governance under the
Constitution.
Under the
1992 Constitution, a violation
of the doctrine could be said to
haveoccurred in one of two
situations: firstly, where one
branch interferes with the
other’s performance of its
constitutionally assigned
function; and secondly, where
one branch assumes a function
that more properly is entrusted
to another. In both instances
exclusivity of the function must
be clear and certain. Thus where
the function is widely
distributed or may be performed
concurrently by two organs,
there is no violation of the
doctrine of separation of powers
if the function or activity is
performed by either of them.
That is the situation here,
whereby the President may
introduce any constitutionally
permissible bill to Parliament
under Article 106(14), and a
bill to amend the Constitution
under Articles290(2) and 291(1)
in his capacity as Head of State
and Government elected by the
entire people to represent their
aspirations both within and
outside the country. Parliament
may equally introduce a bill to
amend the Constitution under
Articles 289(1), 290(1) and
291(1). No provision under the
Constitution, including Article
106(14) confers legislative
power on the President. The
President’s right ends upon
introduction of the bill to
Parliament; he plays no further
part in the passage of the bill
which is the exclusive function
of Parliament. The President
comes in again after the passage
of the bill which he signs into
law under Articles 290(6) and
291(4). So all through the
various steps taken by the
President, it has been made
clear they are aimed at a
possible amendment of the
Constitution. In my view both
the President and Parliament are
empowered to initiate steps to
amend the Constitution.Thus no
step taken by the President has
the effect or intention of
usurping the power of Parliament
when he initiated moves and
introduced bills to amend the
Constitution to Parliament. The
first broad relief set down
above is thus answered in the
affirmative.
I will
next consider the legality or
more aptly in the context of
this argument, the propriety of
C.I. 64.This was enacted
pursuant to Article 278(1) of
the Constitution, which
provides:
Subject
to article (5) of this
Constitution, the President
shall, by constitutional
instrument, appoint a commission
of inquiry into any matter of
public interest where-
(a)
the President is satisfied that
a commission of inquiry should
be appointed; or
(b)
the Council of State advises
that it is in the public
interest to do so; or
(c)
Parliament, by a resolution
requests that a commission of
inquiry be appointed to inquire
into any matter, specified in
the resolution as being a matter
of public importance.
The
plaintiff argues that the
setting up of the Commission
with the aim of collating the
views of Ghanaians towards a
constitutional amendment is not
one of the purposes of Article
278. I will consider his
arguments in some detail
shortly. For now let me refer to
Article 295(1) which defines
‘public interest’ to include
‘any right or advantage which
ensures or is intended to ensure
to the benefit generallyof the
whole of the people of Ghana’
This definition is not
exhaustive by the use of the
expression or word ‘includes’.
My understanding of this
definition is that in
considering what public interest
entails in a given context of
the Constitution, one has to
look at the object sought to be
accomplished in order to decide
whether the matter qualifies to
be one in the public interest.
Article 1(1) of the Constitution
says that the Sovereignty of
Ghana resides in the people of
Ghana. Article 3(4) imposes a
duty on all citizens of Ghanato
defend the Constitution. Even
from a cursory reading of these
two provisions, it is
unquestionable that every
attempt to amend any provision
of the Constitution is a matter
that concerns the entire people
of Ghana and undoubtedly
qualifies as a matter of public
interest. Therefore the
President would be justified in
invoking the provisions of
Article 278(1) in order to reach
out to the people of Ghana for
their views on Constitutional
amendments.
The
plaintiff thinks otherwise. He
argues forcefully that this mode
employed by the President is
illegal as same is
unconstitutional. He talks about
procedural issues affecting the
operation of a commission of
enquiry. He talks about the
status of such a commission, the
same as a High Court, with the
right of appeal to the Court of
Appeal against any adverse
findings. A commission of
inquiry is also a quasi-judicial
body. He submits all these do
not apply to the type of
commission established by C.I.
64.
I would
simply say that not every
commission of inquiry is set up
to investigate some wrongdoing
or acts or omissions of some
person, both human and
corporate. It may be employed
even in situations where it is
considered necessary to help the
President or the body advising
the President, in this case the
Council of State and Parliament,
to set up a commission of
inquiry to seek views of
citizens to help in the
formulation of a national
policy,for example on
education,in the overall
interest of the people.It should
be stressed that not every
commission of inquiry is
expected to make adverse
findings, per Article 280(2).
The status of a commission of
inquiry equivalent to that of a
High Court ensures that it has
the optimum liberty to perform
its task and it underlies the
importance the Constitution
attaches to matters of public
interest or public importance as
the case may be. It is not the
status or outcome of the
commission’s work that
determines what is a matter of
public interest or public
importance. On the contrary it
is after a determination by the
President or Council of State
that a matter is of public
interest or if Parliament has by
resolution determined that a
matter is of public importance
that will inform a determination
that a commission of inquiry be
set up. Once these persons or
institutions have made the
initial determination, the
President may set up a
commission of inquiry. It is not
open to the court to interfere
with the exercise of this
discretionary power unless it is
clearly established that the
matter to be investigated is not
in the public interest as
defined by Article 295 of the
Constitution, or if it was at
the instance of Parliament that
the appropriate resolution was
not passed on a matter of public
importance.
It is
reasonable to draw a distinction
between an unconstitutional or
illegal act or function per se
and a constitutional or legal
act or function that is
performed through inappropriate
or unsuitable or procedurally
expensive and time-consuming
manner in order to achieve the
ends sought. I consider the
plaintiff’s complaint to fall
into the latter category. For so
long as amendment to the
Constitution is a matter of
public interest, which the
plaintiff does not and cannot
indeed deny, the President
commits no illegality by
invoking Article 278(1) towards
the purpose. May be a less
expensive and time-consuming
approach could have been
employed to collate the views,
but that per se does not render
the process adopted
unconstitutional.
The final
arguments relate to the setting
up of the CRIC. The plaintiff
argued that “the President
did not cite the source of his
but power for setting up this
five-member Implementation
Committee. Nor does the
President explain the basis of
electing those five members, two
of whom he subsequently replaced
without any reasons….the
Committee is not clothed with
any semblance of legality. An
alien body cannot be set up by
the President to implement, in
strict compliance with Chapter
25 of the Constitution, the
recommendations accepted by
Government where such
recommendations are also not
recognizable under Chapter 25 or
any part of the
Constitution…………..To the extent
that the CRIC is not cognizable
at law and is the fruit of a
poisoned tree the plaintiff
respectfully submits that the
purported establishment of
the……….Committee and all its
actions are unlawful,
unconstitutional, impermissible,
null void and of no effect.”
This
argument is not sustainable on
the facts and law applicable in
this case. When the President
purports to implement a decision
which he has lawfully taken,
there are several administrative
avenues open to him. These are
not written in a Constitution
for no document can contain
administrative directives or
instructions.
Besides,
there are some powers that the
President exercises which are
necessarily inherent to the
office, for efficient and
effective functioning of the
office. And there are some
powers too that are incidental
to the performance of some
tasks; such powers are not
expressly stated in the
Constitution but they are
necessary to carry out some task
or purpose expressed in the
Constitution. And in cases where
the President has been given an
express power to do something,
it is permissible to assume some
implied power that is necessary
to carry out the express power.
The law makes room for the
application of all these types
of power for it is admitted that
no amount of writing can contain
or take care of every situation
that may arise in the course of
implementing the express
provisions of the Constitution.
As the
Constitution permits the setting
up of a Commission of Inquiry,
it is implied that
recommendations arising out of
the report of such a Commission
may be acted upon after the
White Paper has been issued. The
modes of implementation cannot
be the subject of a
constitutional provision, for
they are varied and many
depending on the subject under
investigation; hence the powers
of implementation are implied
from the original or enabling
text, and need not be enumerated
within the text. The President
may choose to employ
administrative process to
implement the recommendations,
like in the instant case. Such
administrative actions are
inherent in the general powers
assumed by the President in his
office as Head of State and
Government. It does not require
a separate law to authorize the
exercise of his mandate
administratively. It is derived
from Article 58(1) and (2) of
the Constitution which state
that
(1)
The executive authority of Ghana
shall vest in the President and
shall be exercised in accordance
with the provisions of this
Constitution.
(2)
The executive authority of Ghana
shall extend to the execution
and maintenance of this
Constitution and all laws made
under or continued in force by
this Constitution.
In
performing these constitutional
duties the President may issue
administrative instructions
which may include the
appointment of advisors, the
setting up of advisory
committees or groups to advise
him or to carry out aspects of
his work provided such
instructions ,advisors,
committees or groups do not
violate any law.But these are
not written in the Constitution.
As rightly observed by a former
President of the United States,
W. H. Taft in his work titled
Our Chief Magistrate and His
Powers, 1925 at 139-140: “The
true view of the Executive
function is……that the President
can exercise no power which
cannot be fairly and reasonably
traced to some specific grant of
power or justly implied and
included within such grant as
proper and necessary to its
exercise.”
In the
case of Youngstown Sheet &
Tube Co. v. Sawyer (The Steel
Seizure Case) 343 U.S. 579
(1952) the US Supreme Court
took the position that the
President’s power to issue
orders must be founded on the
constitution or an act of
Congress, or be fairly implied
there from.
The
plaintiff is saying that he does
not find any law under which the
President acted in setting up
the CRIC, therefore the actions
by the CRIC are null, void and
of no effect. Counsel’s
arguments centre on the fact
that he cannot figure out the
position of the CRIC within
Chapter 25 or anywhere else of
the Constitution, hence his
claim that it is
unconstitutional. This argument
is not valid because it is
unreasonable to expect that a
small document like the
Constitution will set out every
committee or any ad hoc body
that is required to be set up to
prepare the path towards a
constitutional amendment. It is
left to the discretion of
constitutional bodies like
Parliament and the Presidency to
exercise the power incidental to
their function or power under
Chapter 25 to set up anad hoc
body if it is considered
expedient and necessary. In the
absence of such discretion
implied from or incidental toor
inherent in their powers and
functions it would be virtually
impossible to operate the
Constitution without bringing
governance to a halt. Touching
on constitutional interpretation
in the case of Springer vs.
Philippine Islands, 277 U.S 189
at 209-210 (1928) Justice
Holmes, whilst dissenting, said
that “…….the machinery of
government would not work if it
were not allowed a little play
in its joints.”Thus former
US President Theodore Roosevelt
would say that once the act is
not forbidden by the
Constitution, the President, as
a steward of the people could do
it; see his Autobiography, 1914
at pg 372.
I would
say that once the action is not
forbidden by the constitution or
any Act of Parliament, and is
incidental to the purpose of the
action or inherent in the office
or implied from the function or
power already given under the
Constitution it is permissible
in law to apply it even in the
absence of such express words in
the Constitution.
It is
observed that the CRIC was not
set up in a vacuum or in the
air. It was made clear that its
object was to implement the
recommendations of the
Commission which the Government
had accepted in the White Paper.
Thus the setting up of the CRIC
was founded on the impliedor
incidental power derived from
Articles 278 and 297(c) of the
Constitution in order to give
full effect to the commission’s
recommendations particularly by
way of preparing draft bills for
consideration of Government and
subsequently by Parliament.
It is to
be noted that before any bill
for amendment is introduced to
Parliament under Articles 290(2)
and 291(1) some administrative
work may have been done outside
of Parliament. The body or
person that performs this task
will derive legitimacy by
implication from these
provisions. It is repeated for
emphasis that the framers of the
Constitution could not be
expected to make detailed
provision for every conceivable
situation hence some amount of
power or authority to act is
implied from the original
provisions. Even if Parliament
itself were to collate the views
through external bodies or even
through an investigative team
for the purpose, this would not
be expressly found in the
Constitution, but it would
nonetheless be legitimate as
being implied from their power
to legislate an amendment under
Article 289(1). It is in this
vein that the setting up of the
CRIC should be considered as
having legitimacy.
I would
like to wind down on this
opinion by making reference to
the source of implied powers
under the American Constitution
which crystallized into law in
the USA when Marshall CJ
accepted and applied it in the
US Supreme Court case of
McCulloch v. Maryland 17 U.S 316
(1819). The first President
of the USA requested Alexander
Hamilton to defend the
constitutionality of the First
Bank of the United States.
Hamilton produced the opinion in
1791 arguing that the sovereign
duties of a government implied
the right to use means adequate
to its ends. That although the
United States government was
sovereign only as to certain
objects, it was impossible to
define all the means which it
should use, because it was
impossible for the founders to
anticipate all future
exigencies. That argument in
defence of the constitutionality
of implied powers under the US
constitution was valid then as
it is valid today under our
constitution, under the
executive power conferred on the
President under Article 58(1)(2)
and more importantly and
relevantly under article 297(c)
where it extends to other
persons or institutions besides
the Presidency. Article 297(c)
provides:
where a
power is given to a person or
authority to do or enforce the
doing of an act or a thing, all
such powers shall be deemed to
be also given as are necessary
to enable that person or
authority to do or enforce the
doing of the act or thing.
This
provision embodies all what I
have said previously about
powers which are implied from,
inherent to or incidental to the
power or function specifically
provided for. Thus all the steps
embarked upon by the President
in a bid to submit bills to
Parliament to undertake a
possible amendment of the
Constitution were fully backed
by the Constitution in Articles
278(1), 58(1)(2), 297(c)
290(2)and 291(1).It is for these
reasons that on 14th
October 2015 I dismissed all the
reliefs, save the first part of
relief 5 and the entire relief
7, sought by the plaintiff.
(SGD) A. A.
BENIN
JUSTICE OF THE SUPREME COURT
AKAMBA, JSC:
On 14th
October 2015 this court, by a
majority of five to two decision
dismissed the above writ, but we
reserved our reasons to be
delivered on 29th
October 2015. I have since had
the privilege of a fore reading
of the draft reasons for this
decision by my respected brother
Benin, JSC, and I am in
agreement that the plaintiff’s
action be dismissed except for
the first part of relief 5 and
the whole of 7. I however wish
to express myself briefly on two
key areas for emphasis since
this action raises issues of
great public interest.
BRIEF
FACTS
The
Plaintiff herein who describes
himself as a concerned, private
citizen of the Republic who is
interested in upholding the
respect for and compliance with
the 1992 Constitution and the
Rule of Law, and in ensuring
that the laws in question do not
infringe the letter and spirit
of the 1992 Constitution, filed
a writ on 5th March
2015 invoking this court’s
original jurisdiction, pursuant
to Articles 2 (1) (b) and 130
(1) of the 1992 Constitution and
Rule 45, of the Supreme Court
Rules, 1996, CI 16, seeking
eleven reliefs set out in the
decision by Benin, JSC.
The
defendant Attorney General, not
only denies that the Plaintiff
is entitled to any of the
reliefs claimed, but maintains
that the Plaintiff has also
failed to establish the basis of
his action, hence the same must
fail.
ANALYSIS
OF ARGUMENTS
This writ
is founded upon the Plaintiff’s
contention that the President of
the Republic, by his
establishment of a ten member
Constitutional Review Commission
of Inquiry under CI 64, 2010 to
“(a) ascertain from the people
of Ghana, their views on the
operation of the 1992 Fourth
Republican Constitution and, in
particular, the strengths and
weaknesses of the Constitution;
(b) articulate the concerns of
the people of Ghana on
amendments that may be required
for a comprehensive review of
the 1992 Constitution; and (c)
to make recommendations to the
Government for consideration and
provide a draft Bill for
possible amendments to the 1992
Constitution”, as well as
certain steps taken, based upon
the outcome thereof are contrary
to the letter and spirit of the
Constitution 1992.
A
cardinal principle in the
interpretation of Constitutional
provisions and also acts of
parliament is that the entire
constitution must be read as an
integrated whole and no one
provision should destroy the
other but each should sustain
the other.
The key
issues to be resolved in this
constitutional stalemate are
twofold, namely ,whether in the
light of chapter 25 of the
Constitution, the President has
power to initiate any process
for amending the Constitution
and what is the legitimacy of
the Constitutional Instrument CI
64 vis a vis article 278 (1) (a)
of the Constitution for the
purpose of reviewing the
constitution.
AMENDMENT
OF CONSTITUTION
Without
any doubt, chapter 25 of the
Constitution deals with the
broad subject of amendment of
the Constitution. In particular,
article 289 (1)under Chapter 25
of the Constitution 1992 the
following is encapsulated:
“289 (1)
Subject to the provisions of
this Constitution,
Parliament may, by an Act of
Parliament, amend any provision
of this constitution.”
The
legislative power is vested in
Parliament as provided by
article 93 (2) thus: “93 (2)
Subject to the provisions of
this constitution, the
legislative power of Ghana shall
be vested in Parliament and
shall be exercised in accordance
with this constitution.”
Article
289 (1) thus vests in Parliament
the power to legislate
amendments of the Constitution.
The plaintiff appears to pitch
his strength upon the above
quoted provision to state that
Parliament is thus granted
exclusive power to legislate
amendments. However, while it is
correct to state that Parliament
has the power to legislate
amendments, no effort has been
made to distinguish between the
initiation of the amendment
process and the passing of
theamendment legislation itself.
This distinction is necessary,
because whereas the initiation
of amendment may involve other
players outside Parliament, the
latter is solely within
Parliament. The article 289 (1)
of the Constitution is a
qualified provision in the sense
that the power to amend, vested
in Parliament, is granted
‘subject to the provisions of
the Constitution’. It is obvious
from a full reading of the
article that Parliament’s power
to legislate amendments is
circumscribed by the
constitution itself hence the
qualification ‘subject to the
provisions of the Constitution.
’The expression “subject to”
makes it clear that the power
granted Parliament to amend
provisions of the constitution
is not without regard to other
provisions of the constitution.
This court has had occasion to
consider the phrase “subject to”
in the context of interpreting
article 130 (1) of the
Constitution 1992 which is
relevant for determining the
present issue. In the case of
Edusei (No 2) v Attorney General
(1998-1999) SCGLR753, especially
762,the minority opinion on
the meaning ascribed to the
phrase “subject to” was espoused
by Charles Hayfron-Benjamin, JSC
as follows: “In my respectful
opinion, the expression “subject
to” is not coterminous with
“exclusively”. The English and
foreign legal learning on the
expression “subject to” would
seem to suggest a proviso or a
condition without which in this
context, a jurisdiction may not
be assumed. But this is not so.
…… In my respectful opinion,
therefore, the expression
“subject to” within the context
of article 130 (1) of the 1992
Constitution, means that if
there is no other provision in
the Constitution by which a
remedy may be obtained, then the
High Court will have specific
jurisdiction to grant redress in
matters involved in breaches of
the provisions of chapter 5 of
the Constitution. The power thus
conferred by article 130 (1) is
complementary to and not an
ouster of any jurisdiction
conferred on the Supreme Court
by the Constitution. Nor would
article 2 of the Constitution
make sense.”
Acquah,
JSC (as he then was) at page 790
of the Edusei case, highlights
the majority view when he stated
as follows:
“Now
it must be noted that the
expression “subject to’
appearing at the beginning of
article 130 (1) of the 1992
Constitution is generally used
in legislation to serve as a
warning and thereby avoid an
apparent conflict between
different provisions of the same
enactment or between different
enactments: see Clark (CAJ) Ltd
v Inland Revenue Commission
[1973] 1 WLR 905, affirmed
[1975] 1 801 CA, and Addo v
Sarbah [1968] 154. In the latter
case, which dealt with the
original jurisdiction of the
High Court in rent disputes,
the relevant paragraph 27 of the
Courts Decree, 1966 (NLCD 84)
provided:
“27. Subject to and in
accordance with provisions of
this Decree and any other
enactment for the time being in
force, the High Court shall
have-
(a)
Original jurisdiction
in all matters…”
In explaining the purpose and
effect of the expression
“subject to” at the beginning of
paragraph 27 of NLCD 84, Charles
Crabbe J (as he then was), the
acknowledged authority in
legislative drafting, said at
page 158:
“The expression “subject to” is
used in legislation to serve as
a warning. It is used to
indicate a modification and
thereby point out that the
particular provision in which it
is used is not complete by
itself. It is used to avoid an
apparent conflict between
enactments or between different
parts of the same enactment. To
resolve a conflict that would
otherwise be apparent, it was,
in my view, desirable that a
warning should be given. It is
therefore clear to me that
paragraph 27 of the Courts
Decree is incomplete as it
stands, for the whole of that
paragraph cannot be read and
construed without looking at
other provisions of the Decree
with which it might be in
conflict. Not only that. It has
to be read in conjunction with
‘any other enactment for the
time being.’ ……..
His lordship the proceeded at
page 159 to state the effect of
the “subject to” part of
paragraph 27 thus:
“The effect of this is that if
there is any enactment which
confers specific jurisdiction on
any court or authority or body,
the High Court is precluded from
dealing with that matter save
perhaps on an appeal”. (The
emphasis is mine)….
Article 129 (3) in respect of
which 136 (5) is subject to,
also reads: “The Supreme Court
may while treating its own
previous decisions as normally
binding, depart from a previous
decision when it appears to it
right to do so; and all other
courts shall be bound to follow
the decisions of the Supreme
Court on questions of law.”
Now, it can be seen from the
above two provisions, ie
articles 129 (3) and 136 (5)
that, had it not been for the
“subject to” part of article 136
(5), there would have been a
dilemma for the Court of Appeal
whenever that court is faced
with a choice between its
decision that is in conflict
with that of the Supreme Court
on a question of law. But by
virtue of the “subject to” part
of article 136 (5), whenever
such a situation occurs, the
main part of article 136 (5)
gives way to the “subject to”
part, to enable the Court of
Appeal follow the decision of
the Supreme Court as provided in
129 (3) instead of its previous
inconsistent decision. The Court
of Appeal is thereby, in effect,
precluded from following its own
previous inconsistent decision
because of the “subject to “part
of article 136 (5). The net
result of the above analysis is
that where a statutory provision
is expressed to be subject to
another statutory provision or
statute, this generally makes
the “subject to” provision
prevail over the main provision,
whenever there appears to be a
conflict or an incongruity in
reading the two provisions
together”.
Thus in
the context of the power granted
to Parliament under article 289
(1) of the Constitution to amend
by an act of Parliament, the
same must be exercised with due
regard to the provisions of the
Constitution. Also, while it is
generally true to state that a
general provision must yield to
a specific power to amend, this
cannot be wholly so when the
specific provision itself
stipulates that the exercise of
that power, is itself, subject
to other provisions of the
constitution which do not
derogate from the core objective
of article 289 (1) of the
Constitution.
Article
106 (1) stipulates the mode by
which Parliament shall exercise
its legislative power which is
by passing bills to be assented
to by the President. Apart from
financial bills, which under
article 108 must be introduced
by or on behalf of the
President, the Constitution is
silent on who should initiate
other bills. However all other
bills must comply with article
106 (2) by the provision of
explanatory memorandum detailing
the policy and principles behind
the bill and must have been
published in the Gazette for at
least fourteen days. Bills may
be initiated within Parliament
itself, in the form of private
members bills, which are scarce
or from outside the house by
other key players which appears
to be the standard practice as
most bills are tabled at the
instance of the Attorney
General. These preparatory
initiatives by the other key
players outside the house
culminating in draft bills
presented by the Attorney
General are clear ‘front-end’
activities that fall outside the
mandate reserved only for
Parliament.
Article
106 (14)provides that:
“A
bill introduced in Parliament
by or on behalf of the President
shall not be delayed for more
than three months in any
committee of Parliament.”
[Underlined for emphasis].
The
article does not distinguish
between types of bills to be
introduced by or on behalf of
the President hence it
encompasses all bills. This is a
clear recognition by the
Constitution, granting power to
the President to either
introduce bills by himself or on
his behalf, which is a far cry
from the outright dismissal by
the plaintiff of any such role
by the President. Another
significant provision is article
179 by which the President shall
cause to be prepared and laid
before Parliament at least one
month before the end of the
financial year, estimates of the
revenues and expenditure of
Government for the following
financial year. To my mind these
provisions, read together with
article 108 of the Constitution,
provide a tacit indication of
the power conferred on the
President to either, by himself,
or on his behalf to introduce
bills before Parliament.
Article
108 enacts:
“108. 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 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
alteration of any 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.”
The
plaintiff’s contention that the
“the Constitution endows
Parliament with the
discretionary power to initiate
amendments to the Constitution”
and that “this power to initiate
amendments to the Constitution
is exclusive, specific and,
therefore plenary” is based upon
a linear consideration of
certain provisions only rather
than considering the
Constitution as an integrated
whole as demonstrated above. The
Constitutional does not restrain
the President from any ‘front
end’ role in initiating
amendment/s or bills. Articles
106 (14), 108and 179, read
together with article 297 [c]
clearly empower his initiation
role except for those
specifically excluded by the
Constitution itself such as the
instances specified in articles
56, 107 and 270 (2) to cite but
a few. From the written
arguments, the impression one
gets is that the Plaintiff
envisions, in the Constitution
1992, a complete separation of
powers between the three arms of
government, a situation which
exist more in theory than in
reality for there is hardly any
Constitution that has succeeded
in attaining such purity. In the
words of Prof Kludze, JSC in
Asare v The Attorney General,
[2003-2004] SCGLR 823, at 860:
“Looking at our own
Constitution, there is express
provision directly negating the
doctrine of the separation of
powers. We do not go as far as
the British, whom Montesquieu
apparently misunderstood, in
insisting on a parliamentary
executive.” Thus the
Constitution 1992 is replete
with instances of cross
relationship roles between the
three arms of government – the
executive, legislature and the
judiciary - as and when
necessary, in an attempt to
check exclusivity, and encourage
co-operation between them .A few
instances in the Constitution to
illustrate the point will
suffice. Article 60
(11),provides that where the
President and Vice President are
both unable to perform the
functions of the President, the
Speaker of Parliament shall
perform those functions until
the President or the
Vice-President is able to
perform those functions; Article
78 (1) stipulates that majority
of Ministers of State shall be
appointed from among members of
Parliament. A person shall not
be appointed a Deputy Minister
unless he is a Member of
Parliament or is qualified to be
elected as a member of
Parliament in accordance with
article 79 (2) of the
Constitution; Article 111 of the
Constitution entitles the Vice
President or a Minister or
Deputy Minister who is not a
member of Parliament to
participate in the proceedings
of Parliament and shall be
accorded all the privileges of a
member of parliament except that
they will not be entitled to
vote or hold office in the
house. Article 144 regulates
appointment of the Chief Justice
and other Justices of the
Superior courts; In the case of
the Chief Justice the
appointment is made by the
President acting in consultation
with the Council of State and
with the approval of Parliament;
Supreme Court Justices are
appointed by the President
acting on the advice of the
Judicial Council and with the
approval of Parliament. Justices
of the Court of Appeal and the
High Court are appointed by the
President acting on the advice
of the Judicial Council. The
Supreme Court as per article 130
(1) has exclusive original
jurisdiction in all matters as
to whether an enactment was made
in excess of the powers
conferred on Parliament or any
other authority or person by law
or under the constitution.
In the
light of the provisions referred
above, and as observed by Prof
Kludze, JSC at page 861 of the
Asare case, supra, “we
need not appeal to the doctrine
of the separation of powers to
resolve constitutional issues
which are capable of being
decided by the plain reading of
the text of our Constitution.”
The
sovereign people of Ghana have
ordained Parliament with the
power to make laws, subject to
the Constitution (Article 94
(2). Parliament has also been
granted the power subject to the
provisions of the Constitution,
to amend any provision of the
Constitution. (Art 289 (1). It
is not permissible for this
court to construe these
provisions differently simply
because it would violate the
doctrine of separation of
powers. The articles of the
Constitution that allow for the
President, either by himself or
on his behalf, to initiate
bills, including bills for
amendment, in Parliament for its
consideration are an integral
part of the Constitution
approved and adopted by the
people of Ghana. Activities
prior to those initiatives such
as collation of material are an
integral part of the mandate of
the outside players as provided
by article 297 (c). They are
distinguishable from the core
mandate to legislate which
latter is reserved for
Parliament.
POWER TO
SET UP COMMISSIONS OF INQUIRY
Does
article 278 (1) of the
Constitution grant the President
the power to set up a Commission
of Inquiry for the purpose of
reviewing and proposing
amendment bills to the
Constitution?
Article
278 (1) grants to the President
the power to appoint a
commission of inquiry by
constitutional instrument into
any matter of public interest.
The exercise of this power is
however subject to article five
of the Constitution which deals
with fundamental human rights
and freedoms. The power to
appoint a Commission of Inquiry
into any matter of public
interest is exercisable where:
(a)
the President is satisfied that
a commission of inquiry should
be appointed; or
(b)
the Council of State advises
that it is in the public
interest to do so; or
(c)
Parliament, by a resolution
requests that a commission of
inquiry be appointed to inquire
into any matter, specified in
the resolution as being a matter
of public importance.
In the
present exercise the President
invoked item (a) above, to set
up the Commission of Inquiry
into the operations of the 1992
Constitution by the Constitution
Review Commission which was to
ascertain from the people of
Ghana, their views on the
operation of the 1992 Fourth
Republican Constitution and in
particular, the strengths and
weaknesses of the Constitution;
to articulate the concerns of
the people of Ghana on
amendments that may be required
for a comprehensive review of
the 1992 Constitution; and to
make recommendations to the
government for consideration and
provide a draft bill for
possible amendments to the 1992
Constitution. To invoke this
power under article 278 (1) (a),
all the President needs is to be
satisfied that the matter is of
public interest such as warrants
the setting up of a commission
of inquiry. Article 295 (1)
defines public interest to
include any right or advantage
which enuresor is intended to
enure to the benefit generally
of the whole of the people of
Ghana. The sovereignty of Ghana
resides in the people of Ghana
who adopted and enacted this
constitution for ourselves. Thus
an exercise aimed at
ascertaining from the very
people of Ghana their views on
the operation of the
Constitution as to its strengths
and weaknesses with the view to
propose amendments would enureto
the benefit generally of the
people of Ghana. The President
having thus satisfied himself
was within his power under
article 278 (1) in setting up
the Commission of Inquiry. The
article does not require any
unique or peculiar circumstances
apart from the President
satisfying himself that the
issue is of public interest as
defined under the Constitution.
The
plaintiff argues that “a careful
evaluation of the commission’s
inquiry procedures, nature,
powers, functions, the effect of
its findings as well as the
immunities and privileges of
witnesses appearing before it,
described supra, reveals that
what is contemplated in chapter
23 of the Constitution is not an
all-purpose commissioning power
but the power to commission what
is, in effect, an independent
inquiry to investigate and
establish the truth relating to
specific occurrence, affair or
the activities of an entity.
Such an inquiry would be
considered judicial or quasi in
nature.” Plaintiff also refers
to the requirement for rules of
procedure for all commissions of
inquiry to be determined by the
rules of court committee under
article 281 as indicative of
derogation from the concept of
an all purpose commissioning
power for the President.
In my
consideration of this issue I
must point out as did Acquah,
JSC (as he then was) in
National Media Commission vs
Attorney General [2000] SCGLR 1,
(supra) that “in interpreting
the Constitution, care must be
taken to ensure that all the
provisions work together as
parts of a functioning whole.
The parts must fit together
logically to form rational,
internally consistent framework.
And because the framework has a
purpose, the parts are also to
work dynamically, each
contributing something towards
accomplishing the intended
goal.”
It is
necessary to discount the
assertion that the power to
invoke article 278 is limited to
specific occurrences and
activities of specific entities
because that is not borne out by
the Constitution itself. The
article 278 (1) quoted supra is
not carved in any restrictive
language. It provides the
President an all purpose
commissioning power provided he
is satisfied that a commission
of inquiry should be appointed
or the Council of State advises
that it is in the public
interest to do so or Parliament
by a resolution request that a
commission of inquiry be
appointed into any matter
specified in the resolution as
being a matter of public
importance. So that in any of
the three instances listed
above, the President is clothed
with the authority to set up a
commission of inquiry. Article
280 (1) elaborates on the
functions of Commissions of
Inquiry which are to:
“1 (a)
Make a full, faithful and
impartial inquiry into any
matter specified in the
instrument of appointment;
(a)
Report in writing the result of
the inquiry; and
(b)
Furnish in the report the
reasons leading to the
conclusions stated in the
report.
2. Where a commission of
inquiry makes an adverse finding
against any person, the
report of the commission of
inquiry shall, for the purposes
of this constitution be deemed
to be the judgment of the High
Court; and accordingly, an
appeal shall lie as of right
from the finding of the
commission to the Court of
Appeal.”
The primary function of
commissions of inquiry is to
inform Governments.
Historically, commissions of
inquiry have been classified
into two groups based upon the
methods used to ascertain the
facts. The first category are
those charged with gathering
information which is to be used
for policy formulation or review
or the assessment of the
function-ability of a public
entity. They are referred to as
the Investigatory inquiries.
These types of commission play
the same role as a researcher.
Examples include the Davy Koech
Commission, which investigated
the question of the
appropriateness of Kenya’s
education system. Article 5 (4)
of the Constitution provides for
the appointment of a commission
of inquiry for the purpose of
ascertaining the need and
substantial demand for the
creation, alteration or merger
of regions in Ghana. This type
of commission of inquiry could
only be the investigatory type.
The second category of
commissions of inquiry are those
charged with ascertaining the
facts of a particular issue.
Their role has been equated with
that of an inquisitor and they
are referred to as inquisitorial
inquiries. This type of inquiry
usually investigates the facts
surrounding a scandal or
allegations of wrongdoing. The
Miller inquiry which
investigated allegations of
wrongdoing against former
Attorney General of Kenya
Charles Njonjo is such an
example. The Jiagge Assets
Commission under NLCD 72 which
made adverse findings against
Gbedemah is a local example.
(see Awoonor Williams v Gbedemah
(1970 2 G &G 442)
It is therefore not a correct
statement of the present
Constitutional position to limit
commissions of inquiry, set out
under article 278 (1) to only
those that make adverse
findings. The wording of article
280 (2) (supra) is a pregnant
reminder that the outcome of
commissions of inquiry do not
necessarily have to result in
adverse findings being made
against any persons. It is also
obvious from articles 280 (2)
and 5 (4)(supra) that where the
outcome of the commission of
inquiry has resulted in the
gathering of facts to be used
for policy formulation or
review, that outcome is not
envisaged as a decision of the
High Court as distinct from
those which make adverse
findings and are deemed to be
decisions of the High Court.
The President was therefore
within his mandate in the
setting up of both the
Constitution Review Commission
of Inquiry (CRC) pursuant to CI
64 as well as the Constitution
Review Implementation Committee
(CRIC) being initiatives prior
to or preparatory to any bills
for the purpose of initiating
amendments.
It is
for the above reasons and those
articulated by my respected and
able Honourable Lady Chief
Justice (Presiding) and the
three brothers that I concurred
in the dismissal of the
plaintiff’s writ save for the
first segment of relief 5 and
the whole of relief 7.
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
DISSENTING OPINIONS
DOTSE
JSC:
On
the 14th day of
October 2015, judgment was
delivered by this court in a 5-2
majority decision, with Dotse
and Anin-Yeboah JJSC dissenting.
The court did not give reasons
for the said judgment. I now
proceed to give my reasons for
the decision I gave.
By his action, the plaintiff
herein, who described himself as
a concerned citizen of the
Republic of Ghana and is
interested in upholding the
respect for and compliance with
the Constitution 1992, is
seeking this court’s
intervention to stop the
Defendant’s herein, and by
necessary implication, the
Chairman and members of the
Constitutional Review
Implementation Committee, their
agents, privies and or servants
to desist from taking any steps
or actions that are inconsistent
with chapter 25 of the
Constitution 1992 to wit, the
amendment process of the
Constitution and declare all
such actions or processes
unlawful, unconstitutional,
null, void and of no effect.
In my opinion, because of the
importance which I attach to
this particular case, I deem it
expedient to set out in
particular details, the nature
of the reliefs the plaintiff
claims against the Defendant and
the basis of such claims. This
is because, in my opinion, the
instant action, constitutes one
of the most serious challenges
to infringements under the
Constitution 1992, since its
inception.
What then are the reliefs which
the plaintiff claims against the
Defendants’ in this Court?
RELIEFS WHICH THE
PLAINTIFF CLAIMS AGAINST
DEFENDANTS’ BEFORE THIS COURT
These are:
1. “A declaration that, the
Constitution Review Commission
of Inquiry Instrument, 2010, C.
I. 64 is null, void and of no
effect as it contravenes the
letter and spirit of Article 289
(1) of the 1992 Constitution, in
that the effect, if not the
intended purposes, of C. I. 64
is to usurp powers that the 1992
Constitution expressly,
exclusively and specifically
conferred to Parliament.
2. A declaration that the
powers granted to the President
under Article 278 (1) to
“appoint a commission of inquiry
into any matter of public
interest” does not include
the power to establish a
commission to review and propose
amendment bills to the
Constitution where such powers
to review and propose amendment
bills to the Constitution have
been expressly, exclusively and
specifically conferred to
Parliament.
3. A declaration that Article
278 (1) does not grant the
President an all- purpose
commissioning power but only
gives him the power to
commission an independent
inquiry to investigate and
establish the truth relating to
an entity’s affairs, activities
or some specific occurrence that
is in the public interest.
4. A declaration that the
Constitution Review
Implementation Committee (CRIC)
set up by the President to
finalize amendment bills for
both the entrenched and
non-entrenched provisions is
alien to the Constitution and
any and all of its activities
directed at finalizing amendment
bills that touch on any and all
aspects of the Constitution,
whether entrenched or
non-entrenched, are unlawful,
unconstitutional, impermissible,
null, void and of no effect.
5. A declaration that the 1992
Constitution can be amended only
in accordance with the express
provisions of Chapter 25 of the
Constitution and that the
President’s role in any such
constitutional amendments is
limited to the ministerial tasks
stipulated in Article 290 (6),
291 (4) and 292 (a).
6. A declaration that
Parliament’s power to amend the
Constitution as stipulated in
Article 289 (1) is plenary and
exclusive.
7. A declaration that
Parliament’s power to amend the
Constitution as stipulated in
Article 289 (1) cannot be
delegated to or usurped by the
President.
8. An order directing the
President, the Chairman and
Members of the Constitution
Review Commission (CRC), the
Chairman and Members of the
CRIC, the Attorney General,
their deputies, agents, or
employees or any other servant
or agent of the Republic to
permanently cease and desist
from taking any actions that
seek to amend or otherwise
disturb the Constitution in so
far as such actions are
inconsistent with Chapter 25 of
the Constitution.
9. An immediate order
directing the President, the
Chairman and Members of the
Constitution Review Commission
(CRC), the Chairman and Members
of the CRIC, the Attorney
General, their deputies, agents,
or employees or any other
servant or agent of the Republic
to cease and desist from taking
any actions that seek to amend
or otherwise disturb the
Constitution, in so far as such
actions are inconsistent with
Chapter 25 of the Constitution,
during the pendency of this
litigation.
10. Such further or other orders
as the honourable Supreme Court
will deem fit to make.
11. Costs for court
expenses and counsel fees.”
Emphasis supplied
BRIEF FACTS
The plaintiff in an incisive 30
paragraphed affidavit, stated
his statement of case which set
out with clarity, the reasons
why he is seeking the reliefs
already referred to supra
against the Defendants’.
The facts of this case admit of
no controversy whatsoever. In
January 2010, the late President
Atta Mills set up a Constitution
Review Commission under the
Constitution Review Commission
of Inquiry Instrument, 2010 C.
I. 64 with terms of reference
aimed basically at collating
views from the people of Ghana
on the weaknesses inherent in
the workings of the Constitution
1992 with a view to review
and or comprehensively amend the
said Constitution as the case
might be. The Constitution
Review Commission was set up
pursuant to article 278 (1) of
the Constitution 1992.
Even though the Defendants have
stated quite clearly in their
statement of case that it was
not the mandate of the C.R.C to
amend the Constitution 1992,
from a critical reading and
analysis of the terms of
reference of the C.R.C as is
manifest in C. I. 64, it is
obvious that, the end result of
their work was going to result
into amendments of the
Constitution 1992. This is
evident in terms of reference no
(c) of the CRC, which states as
follows:
“to make recommendations to the
Government for consideration and
provide a draft bill for
possible amendments to the 1992
Constitution”.
Be that as it may, the C.R.C was
duly set up with the membership
appointed by His Excellency The
President.
The C.R.C presented its report
to the President, and Government
issued a White Paper on the
report of the C.R.C, in June
2012.
Whilst the government claimed to
have accepted most of the
recommendations of the C.R.C, it
nevertheless rejected some. In
pursuance of the White Paper,
Government subsequently set up a
five member Constitution Review
Implementation Committee (CRIC)
to, as it were, implement in
strict compliance,the
recommendations that have been
accepted for amendment, pursuant
to chapter 25 of the
Constitution 1992, which deals
with amendments.
The Plaintiff therefore
considers all the processes
initiated from the setting up of
the CRC to that of the CRIC as
unconstitutional and captures it
as follows in paragraph 11 of
his statement of case.
“Infact, the process by which
the government accepted or
rejected the commission’s
recommendations, as is the
process by which members of the
Commission (CRC) and Committee
(CRIC) were appointed, remains
invincible to the plaintiff and
people of Ghana. Moreover, the
process described in point 9
supra, where an unelected CRIC
implements government white
paper recommendations cherry
picked from recommendations of
an unelected CRC, is completely
alien to Chapter 25 of the
Constitution and antithetical to
constitutionalism, separation of
powers and democratic
governance.”
The plaintiff therefore contends
that, following instructions
received from the President, the
CRIC has issued draft bills for
the amendment of thirty four
(34) entrenched provisions of
the Constitution, whilst
introducing seven (7) new
entrenched provisions.
The Plaintiff also contends that
the CRIC has also announced the
preparation of several
non-entrenched provisions to the
preparation of new draft bills
on the Armed Forces and other
related matters.
The plaintiff further contends
that the Chairman of the CRIC
has announced the procedure
which Ghanaians are to vote in
the referendum by marking either
“yes” or “no” on
all the changes to the thirty
four (34) entrenched provisions
and the additions of seven (7)
new entrenched provisions.
The plaintiff however
contends that article 278 (1)
(a) of the Constitution does not
grant the President an all
purpose commissioning power. He
contends that, the power therein
only gives the President the
power to commission what is, in
effect, an independent inquiry
to investigate and establish the
truth or otherwise relating to a
specific occurrence, affair or
the activities of an entity.
Such an inquiry is considered a
judicial or quasi judicial in
nature.
Thus, article 280 (2) of the
Constitution is emphatic that
adverse findings made against a
person by an article 278
commission, are deemed to have
the same judicial status as a
judgment of the High Court from
which an appeal lies to the
Court of Appeal. The
plaintiff therefore is of the
contention that the CRC is of a
radically different nature than
the type of Commissions of
enquiry envisaged under article
278 (1) (a) of the Constitution
1992.
Whilst the Defendant admits the
facts stated supra, it
controverts the plaintiff’s
assertion that the CRC and the
CRIC cannot be said to take
their mandate from article 278
(1) (a) of the Constitution
1992. In essence, what the
Defendants’ contend is that, the
President was within his powers
when he set up the CRC using the
article 278 (1) (a) procedure
and that everything done therein
up to the CRIC stage and the
preparation of draft bills for
the proposed amendments of the
entrenched provisions and non
entrenched provisionusing the
provisions in Chapter 25 of the
Constitution 1992 are all
constitutional.
What this court has been asked
to decide basically in this case
is whether the framers of the
Constitution 1992,vested the
power to initiate constitutional
amendment solely and exclusively
in the hands of Parliament and
only a ministerial role to the
President, or that the President
has the role he has played in
the present scenario through the
work of the CRC i.e. C.I. 64 and
that of the CRIC.
STATEMENT OF CASE OF
PLAINTIFF IN SUPPORT
The Plaintiff’s statement of
case state’s in part as
follows:-
“In January 2010 President John
Atta Mills set up the
Constitution Review Commission
under the Constitution Review
Commission of Inquiry
Instrument, 2010, C. I. 64 with
the following terms of
reference:-
a.
To ascertain from the people of
Ghana, their views on the
operation of the 1992 Fourth
Republican Constitution and, in
particular, the strengths and
weaknesses of the Constitution.
b.
To articulate the concerns of
the people of Ghana on
amendments that may be required
for a comprehensive review of
the 1992 Constitution;
c.
To make recommendations to the
Government for consideration and
provide a draft Bill for
possible amendments to the 1992
Constitution.
SUBMISSIONS ON THE WHITE PAPER
ON CRC REPORT
9. “In the said white paper,
Government claims to have
accepted most of the
recommendations of the
Commission and set up a
5-member Constitution Review and
Implementation Committee (CRIC)
to implement, in strict
compliance with chapter 25 of
the Constitution on “Amendments
to the Constitution” the
recommendations that have been
accepted by Government.”
WORK OF THE CRIC
12. “Pursuant to the
instructions from the President,
the CRIC has issued a draft
bill for the amendment of 34
entrenched provisions of the
Constitution. In addition, the
draft bill will introduce 7 new
entrenched provisions along with
consequential and transitional
provisions.
14. The CRIC has also announced
the preparation of the Armed
Forces Amendment Bill and has
proposed amendments to several
non-entrenched provisions on
matters ranging from the
abolition of regional tribunals,
election of District Chief
Executives from a slate of
candidates provided by the
President and revision to the
retirement age subject to the
exigencies of a particular
profession.”
THE CRUX AND CORE ELEMENTS OF
PLAINTIFF’S CASE
15. “The Plaintiff’s case
is that the President’s Article
278 (1) (a) powers to appoint
commissions of inquiry do not
extend to setting up commissions
to review the Constitution or to
make such breathtaking changes
to the Constitution.
16. The Plaintiff’s case is that
the phrase “any matter of public
interest” cannot be read
literally to empower the
President to establish a
commission at his pleasure to
undertake any and every
conceivable assignment that the
President deems to be in the
“public interest”. Such a
literal reading of article 278
(1) (a) would grant the
President license to appoint
commissions to take on the full
range of functions
constitutionally assigned to
other bodies outside the
executive branch, and thus
undermine the independence and
credibility of such institutions
and make nonsense of the
Constitutional scheme of
separation of powers.
17. The Plaintiff says that the
CRC, whose task is to undertake
a comprehensive review of the
Constitution and draft a bill of
proposed amendments to the
Constitution, is of a
radically different kind than
the commission contemplated
under article 278 (1) (a).
18. The plaintiff’s case is that
a comprehensive review of the
Constitution is an act sui
generis, not just “any” matter
of public interest to be
governed by the generic
provisions relating to ad hoc
commissions of inquiry.
19. The plaintiff’s case
is that any review of the
Constitution whose purpose is to
amend the Constitution must be
governed solely and exclusively
by the express requirements of
chapter 25 of the Constitution.
20. The Plaintiff’s case
is that the power to amend the
Constitution conferred to
Parliament in Article 289 (1) is
plenary and exclusive in that
the Article separately
identifies, defines and
completely vests the amendment
power in Parliament and only
Parliament. That authority can
neither be delegated to nor
usurped by the President.
21. The Plaintiff says that
consistent with Article 297 (c)
the power vested in Parliament
to amend the Constitution under
Article 289 (1) includes any
and all incidental powers
necessary for the accomplishment
of the express power so
conferred, including but not
limited to the power to initiate
amendment bills, hold hearings
in committee, pass legislation
to guide any review or reform of
the Constitution or to deploy
such other methods or
processes as Parliament may deem
necessary that are not
inconsistent with the
Constitution.” Emphasis
supplied.
PLAINTIFF’S STATEMENT
OF CASE ON PERCEIVED VIOLATIONS
OF THE CONSTITUTION BY THE
DEFENDANT
25. The Plaintiff’s case
is that it is impermissible for
the President to misappropriate
his Article 278 (1) powers to
undo the carefully designed
amendment architecture in
chapter 25 of the Constitution.
26. The Plaintiff’s case is that
not having the powers to set up
a commission to review the
Constitution, the President’s
purported appointment of the CRC
and the CRIC are of no legal
effect and any actions ensuing
from the CRC and CRIC are also
null, void, unlawful and
unconstitutional.
27. The plaintiff’s case
is that the government, through
the CRIC, proposes to
impermissibly place before the
people of Ghana in a referendum
a slate of unrelated proposals
seeking to change 34 entrenched
provisions and add seven new
entrenched provisions together
with consequential and
transitional amendments.
28. The plaintiff says
that bundling of unrelated items
under a single amendment bill is
contrary to Parliament’s
standing orders. Section 117 (1)
of Parliament’s standing orders
says that, “matters with no
proper relation to each other
shall not be provided for in the
same bill.”
This “single subject”
clause requires that a bill’s
provision only relate to one
subject, and in some cases that
the bill’s title likewise relate
only to one subject.
PLAINTIFF’S CLOSING REMARKS IN
HIS STATEMENT OF CASE
30. In brief, the
Plaintiff’s case is that the
Constitution can only be amended
by its terms. Parliament is the
sole body that can initiate,
consider and propose amendments
to the Constitution.
Parliament’s power to amend the
Constitution is not only plenary
and exclusive but also cannot be
delegated to or usurped by the
President, the Commission (CRC)
or the Committee (CRIC). The
President’s role in
constitutional amendment is
limited to the ministerial task
of giving assent to bills
properly passed by Parliament.
The President has no power to
set up a commission to initiate
amendments or draft amendment
bills to the Constitution. To
the extent that the President
has usurped Parliamentary powers
and misappropriated Article 278
(1) to traverse the amendment
architecture emplaced by Chapter
25 of the Constitution, it is
the Plaintiff’s case that C. I.
64 setting up the Constitution
Review Commission, all actions
taken by the Commission, the
establishment of the
Constitution Review and
Implementation Committee and all
its actions are unlawful,
unconstitutional, impermissible,
null, void and of no effect.”Emphasis supplied.
As can be read from paragraph 30
supra, the Plaintiff has with
some degree of clarity and
brevity summarized the facts and
particulars that support his
case in favour of the reliefs
which he seeks against the
Defendant.
THE DEFENDANT’S
RESPONSE TO PLAINTIFF’S
STATEMENT OF CASE
The Defendant acting through Mr.
Sylvester Williams, learned
Chief State Attorney, in a well
articulated 25 paragraphed
statement of Defendant’s case,
set out in detail it’s response
as follows:-
OPENING RESPONSE BY
DEFENDANT
“From the outset, it
is clear that the mandate of the
Commission was not to amend the
Constitution 1992. Their mandate
was to gather information from
the people of Ghana regarding
their views of the operations of
the Constitution, bearing in
mind sections that needed to be
amended. The Commission was also
required to provide a draft Bill
for consideration by all
stakeholders for possible
amendments to the Constitution”.
Emphasis supplied.
DEFENDANT ANCHORS
IT’S CASE ON ARTICLE 278 (1)
3. “In accordance with the
provisions of C. I. 64, the
President established the
Commission in the exercise of
powers conferred on him by
Article 278 (1) (a) of the
1992 Constitution.
4. It is the contention of the
Plaintiff that C. I. 64 is null
and void and of no legal effect
as it contravenes the letter and
spirit of Article 289 (1) of the
1992 Constitution, since by the
Article supra, it is Parliament
that has the exclusive and
specific power to amend the
Constitution.
5. Article 278 (1) (a) of the
1992 Constitution provide as
follows:-
Appointment of Commission of
Inquiry
(1)
“Subject to Article 5 of the
Constitution, the President
shall, by Constitutional
Instrument, appoint a Commission
of Inquiry into” any matter of
public interest” (my emphasis)
where
(a)
The President is satisfied that
a Commission of Inquiry should
be appointed …”
DEFENDANT’S
SUBMISSION ON WHAT CONSTITUTES
PUBLIC INTEREST
6. What then constitutes
“any matter of Public
Interest” and whether
any issue concerning the
provisions of the Constitution
can be classified as matters of
Public Interest?
Article 295 (1) of the
Constitution, 1992 provides the
definition of public interest,
in the following manner,
“In this
Constitution, unless the context
otherwise requires-
“Public interest” includes any
right or advantage which inures
or is intended to inure to the
benefit generally of the whole
of the people of Ghana.”
INTRODUCTION OF ARTICLE 1
PRINCIPLES OF THE CONSTITUTION
8. The impression one gets
from reading article 1 of the
Constitution is that, it is the
people of Ghana who have
surrendered their sovereignty to
the Government to rule in
accordance with the provisions
of the Constitution.
9. The Plaintiff contends
that, Parliament has the
exclusive and specific mandate
to amend the Constitution
pursuant to Article 289 (1). The
said article reads as follows:-
289 Amendment of
the Constitution
(1) “Subject to the
provisions of this Constitution
(my emphasis), Parliament may,
by an Act of Parliament, amend
any provision of this
Constitution.”
It is to be noted that in the
language of the provision,
Parliament in exercising its
powers of amending the
Constitution is “subject to” the
other provisions of the
Constitution. In the case
of Edusei v Attorney-General
[1998-99] SCGLR 753, his
Lordship Charles
Hayfron-Benjamin JSC, said of
the phrase “subject to” at page
762 in the following manner.
“In my respectful
opinion, therefore the
expression, “subject to” within
the context of article 130(1) of
the 1992 Constitution, means
that, if there is no other
provision in the Constitution,
by which a remedy may be
obtained, then the High Court
will have specific jurisdiction
to grant redress in matters
involved in breaches of
provisions of chapter 5 of the
Constitution.”
Learned counsel for the
Defendant continued his
submissions in the Defendant’s
statement of case thus:-
“Similarly, it is my
candid view that, the proper
interpretation of article 289
(1) of the Constitution is that
the amendment of the
Constitution should be
undertaken by Parliament alone,
provided there is no
provision in the Constitution
dealing with amendment to the
Constitution. Unfortunately,
that is not the case. In
amending the Constitution, the
procedures and the processes
mentioned in articles 289, 290
and 291 are to be complied with.
That is not all. The President
of the Republic of Ghana is
empowered by article 278 of the
Constitution to appoint a
commission of inquiry to go into
any matter of public interest.
And as we have already
demonstrated amendment to the
Constitution is a matter of
great public interest; and if a
commission of inquiry is set up
by the President to collect and
collate views from the people of
Ghana geared towards amending
the Constitution, then there is
no gainsaying the fact that
article 278 of the Constitution
is a provision to take into
consideration when it comes to
amending the Constitution.
In other words, the
provision for amending the
Constitution will undoubtedly
include article 278 (1) (a)
which in effect allows the broad
masses of the people of Ghana to
have a say in amendment of the
provisions of the Constitution.
Additionally, My
Lords, the amendment process
itself is neither the preserve
nor exclusive territory for
Parliament. The amendment
involves the people, Council of
State, Parliament and President.
If the framers of the
Constitution were minded to
cloth Parliament with exclusive
power to amend the Constitution,
they would have done so in plain
language; (sic) and article 289
(1) of the Constitution would
not have preceded with the words
“subject to the provisions of
the Constitution…”
DEFENDANT’S
SUBMISSIONS ON AMENDMENT
PROCESSES OF THE CONSTITUTION
10. “Pursuant to Article 290
under chapter 25 of the
Constitution, the procedures for
the amendment of entrenched and
non-entrenched provisions of the
Constitution are discussed. It
is worthwhile to note that the
amendment of an entrenched
provision of the Constitution
does not involve Parliament
alone.”
PROCEDURE FOR
AMENDMENTS OF ENTRENCHED
PROVISIONS
11. Pursuant to clauses 2, 3, 4,
5 and 6 of the Article 290, the
following steps are followed in
amending entrenched provisions
of the Constitution.
i. Speaker refers
a Bill for amendment to Council
of State who renders the advice
within 30 days.
ii. Bill is
published in the Gazette and
shall be introduced into
Parliament after 6 months of the
Gazette notification.
iii. After first
reading in Parliament, a
referendum shall be held to be
voted upon by at least 40% of
people entitled to vote and at
least 75% of people who voted,
voted in favour in passing of
the Bill.”
Continuing further his
submissions, learned Chief State
Attorney stated partly in
paragraph 13 of the Defendants
statement of case as follows:-
13. “Once again, My Lords, with
non-entrenched provisions, it is
not only Parliament that can
amend it. The Council of State,
Parliament and the President are
all involved.”
No amendment can be
valid if the President refuses
to assent to a Bill approved by
Parliament.
A Bill assented to by the
President can be declared as
unconstitutional, null and void
by this Honourable Court in an
action for such a declaration,
if it is proved that the Council
of State was not given the
opportunity to advice on it.
15. Article 106 of the
Constitution 1992, spells out
the manner in which our
Parliament can exercise its
legislative powers in cases of
ordinary Bills, Urgent Bills and
Financial Bills. However,
when it comes to entrenched
provisions, the procedure
thereof is provided for under
Chapter 25 of the Constitution
1992. One would notice that,
when it comes to entrenched
provisions of the Constitution
1992, Parliament is not clothed
with the same powers as it is
with ordinary Bills of
Parliament. In article 106 of
the Constitution 1992,
provisions are made for the Bill
to be read for the first time
and then referred to the
appropriate committee for
examination. Thereafter it
is reported to Parliament for a
full debate. At this stage,
Parliament has power to make
amendments or pass the Bill into
law.
16. The procedure narrated in
paragraph 15, supra, cannot be
applied to entrenched
provisions. In fact, the
combined effect of article 290
(2), (3) and (4) suggests that
when it comes to the amendment
of entrenched provisions of the
Constitution 1992 Parliament has
no role to play by way of debate
as it is the case with other
Bills of Parliament in article
106 of the Constitution 1992.
17. Paragraph 28 of the
Plaintiff’s statement of case is
totally false. Section 117
(1) of the Standing Orders of
Parliament does not deal with
matters which has no proper
relation to each other. It is
rather section 118 (1) of the
Standing Orders of Parliament
that deals with that subject.
The section states as follows:-
“Matters with no proper
relation to each shall not be
provided for in the same Bill.”
The contention of the
plaintiff that the Bill is
offensive to the Standing Orders
of Parliament because they are
unrelated is unsustainable. This
is because all the matters in
the Bill are related as they all
deal with the amendment to the
Constitution.”
POSITION OF DEFENDANT
ON THE CASE BEFORE THIS COURT
18. It is our submission that
article 289 (1) does not confer
on Parliament the exclusive
mandate to amend any provision
of this Constitution. It is
the right of the President to
constitute a Commission of
Inquiry to undertake the
preparatory work towards the
amendment of certain parts of
the Constitution, especially
when the President is satisfied
that it is in the interest of
the public to do so. It is
our view that, the Constitution
Review Commission of Inquiry was
a lawful Institution so is its
offshoot, the Constitution
Review and Implementation
Committee.
19. It is our position that both
provisions of the Constitution,
Articles 278 (1) (a) and 289 (1)
complement each other regarding
the amendment of some of the
provisions of the Constitution.
Article 278 (1) (a) of the
Constitution 1992 enables the
people of Ghana to partake in
the amendment process by
submitting memoranda or
articulating their views on some
provisions of the Constitution.
These pieces of information put
together become the building
blocks of the Bill, which
initiates the amendment process.
It is to be noted that a
national Constitution is a
framework and it cannot take
care of every activity in this
country. Provided the steps
being taken are in tandem with
the law, the same is lawful. The
establishment of the CRIC is
just one of the processes of
putting up a Bill for amendment
following the information
gathered by the CRC.
21. This notion of construing
national Constitutions broadly,
have been settled in many cases
including the landmark case of
Tuffour v Attorney General
[1980] GLR 637. In the
judgment of the Court of Appeal
sitting as the Supreme Court,
the notion that with National
Constitutions, the courts ought
not to narrowly construe its
provision but rather construe
provisions of a National
Constitution liberally and
broadly was stressed by Sowah
JSC at page 647-648 thus:-
“A written constitution
such as ours is not an ordinary
Act of Parliament. It embodies
the will of the people. It also
mirrors their history. Account
therefore, needs to be taken of
it as a landmark to a peoples
search for progress. It contains
within it their aspirations and
their hope for a better and
fuller life.
A constitution has its
letter of the law. Equally, the
Constitution has its spirit. Its
language… must be considered as
if it were a living organism
capable of growth and
development… A broad and liberal
spirit is required for its
interpretation would not do. We
must take account of its
principle and bring it into
conformity with the needs of the
time.”
22. Also Apaloo JA (as he then
was) in Sallah v
Attorney-General,
Supreme Court, 20th
April 1970; digested in (1970)
CC 55 said
“We shall fail in our duty
to effectuate the will of the
Constituent Assembly if we
interpreted the Constitution
1969, schedule 1, section 9 (1),
not in accordance with its
letter and spirit but in
accordance with some doctrinaire
juristic theory.”
23. Sowah CJ, in the
Republic v High Court, Accra:
Ex- Parte Adjei, Supreme
Court 23rd June 1968:
digested in [1984-1986] GLRD 130
said,
“The narrow rules of
construction applicable in the
cases of contracts, Will’s,
statutes and ordinary
legislations may or may not be
adequate when it comes to the
interpretation of a constitution
or law intended to govern the
body politics. Our
interpretation should therefore
match the hopes and aspirations
of our society and our
predominant consideration is to
make the administration work.”
Emphasis supplied.
CLOSING REMARKS OF THE DEFENDANT
IN HIS STATEMENT OF CASE
24. It is in the light of
the above exposition that we
wish to indicate that articles
278 (1) (a), 289 (1), 290 and
291 must all be read together to
achieve the purpose in relation
to the amendment of the
Constitution.The mention in
article 289 (1) of “Parliament
may, by an Act of Parliament
amend any provision of the
Constitution” constitutes the
letter of the Constitution. The
spirit of this provision is
gathered if one reads this
provision in addition to the
other provisions mentioned
supra. This enables one achieve
the real purpose for the
amendment of the Constitution.”
With the above closing remarks,
the Defendant invited this court
to dismiss the Plaintiff’s
action.
MEMORANDUM OF ISSUES
It is to be noted that after the
setting out of their respective
statements of case as has been
referred to in extenso, the
parties filed separate
memorandum of issues.
Accordingly, the court on the 9th
day of July 2015 set down and
agreed to the respective
memoranda of issues. I will
therefore set these out in
detail, commencing with the
memorandum of issues of the
Plaintiff.
ISSUES FOR THE
PLAINTIFF
i. Whether the power granted
to the President under Article
278 (1) to “appoint a commission
of inquiry into any matter of
public interest” includes the
power to establish a commission
of inquiry to review and propose
amendment bills to the
Constitution where the power to
review and propose amendment
bills to the Constitution has
been expressly, exclusively and
specifically conferred to
Parliament?
ii. Whether the President has
any power under the Constitution
to set up a Constitution Review
Implementation Commission (CRIC)
with the mandate to implement,
in strict compliance with
Chapter 25 of the Constitution,
the recommendations of the
Constitution Review Committee
(CRC) that have been accepted by
the government?
iii. Whether Parliament’s power
to amend the Constitution in
conformance with the processes
stipulated by Chapter 25 of the
Constitution is plenary and
exclusive and therefore cannot
be usurped by or even delegated
to the President?
iv. Whether processes and
procedures not explicitly
specified by the Constitution,
including wholesale review of
the Constitution, can be used to
amend the 1992 Constitution?
v. Whether the President’s
role in any such constitutional
amendments is limited to the
ministerial tasks stipulated in
Article 290 (6), 291 (4) and 292
(a)?
THE FOLLOWING ALSO
CONSTITUTE THE DEFENDANT’S
MEMORANDUM OF ISSUES:
1. Whether the Constitution
Review Commission of Inquiry
Instrument, 2010 C. I. 64
contravenes the letter and
spirit of article 289 (1) of the
1992 Constitution and therefore
must be declared as null and
void.
2. Whether under article 278
(1) of the Constitution 1992,
the President has the power to
establish a commission to review
and propose amendment bills for
the Constitution.
3. Whether or not the
Constitution Review
Implementation Committee and all
its activities relating to
finalizing amendment bills for
the Constitution are
impermissible, unlawful,
unconstitutional and null and
void.
4. Whether Parliament is
the only institution that can
amend the Constitution.
In considering the separate
memorandum of issues filed by
the parties, I have observed
some repetitions and
similarities.
For example, Plaintiff’s
memorandum of issues number I is
similar in context and content
to issue number IV. These two
can therefore be taken together.
Furthermore, Plaintiff’s issue
number II is also similar to
issue number V.
In real terms therefore, the
Plaintiff’s issues could have
been subsumed under three
issues, issues I and IV are one,
whilst issues II and V are also
one. It is only Plaintiff’s
issue number 3 which stands out
distinctly on it’s own.
On the Defendant’s memorandum of
issues, numbers 1 and 2 are
similar in content and context.
What should be noted here is
that, these two issues 1 and 2
of the Defendant’s are therefore
similar and encompass
plaintiff’s issues numbers I and
IV already referred to.
Defendant’s issue number 3 is
similar in content to the
Plaintiff’s issue II and V.
Finally, Defendant’s issue
number 4 is similar to
plaintiff’s issue III.
I will therefore narrow the
issues to the above permutations
and discuss them as such.
CONSTITUTIONAL
POSITION OF RULES OF COURT
COMMITTEE AND C.I. 16
In the exercise of the powers
conferred on the Rules of Court
Committee by clause (4) of
article 33, clause (3) of
article 64 and clause (2) of
article 157 of the Constitution
1992, the Supreme Court Rules,
1996, C. I. 16 had been made. It
is also to be noted that, it is
these rules which regulate
procedure in the Supreme Court.
FILING OF MEMORANDUM
OF ISSUES – RULE 50 OF C.I. 16
I have been minded to write this
particular comment because of
what I consider to be breaches
or non-observance of some of the
specific rules of procedure
germane to this case in this
court.
Since the plaintiff has invoked
the original jurisdiction of
this court, Rule 50 of C. I. 16
is applicable. This rule
provides as follows:-
50 (1) ”The parties may agree
to file, or shall file, if so
ordered by the court, file a
memorandum specifying the issues
agreed by them to be tried at
the hearing of the action.
(2)
The memorandum of agreed issues
shall be signed by the parties
and may, with the leave of the
court granted upon such terms
as the court may determine, be
amended upon the application of
the parties.
(3)
Where the parties cannot agree
on the issues each party, may
file his own memorandum of
issues.”
In this court, parties and
learned counsel have taken the
view that they are at liberty to
file separate and distinct
memorandum of issues. However, a
close reading of the above rules
as has been stated supra gives
the clearest indications that,
after the close of pleadings,
the parties are expected to
exploit the possibility of
filing agreed issues of
memoranda as the marginal notes
to Rule 50 (1) of C. I. 16 puts
the matter beyond doubt when it
states emphatically that the
memorandum of agreed issues
shall be signed…”
It is therefore clear that the
following steps must be followed
by parties and their counsel in
suits invoking the original
jurisdiction of this court in
the formulation and filing of
memorandum of issues pursuant to
rule 50 of C.I. 16. These are
(1)
Agreement by the parties
to file joint memorandum of
issues.
(2)
The parties may be
mandatorily ordered by the court
to file agreed memorandum of
issues, and if so ordered, shall
comply.
(3)
This memorandum of agreed
issues shall be signed by the
parties, and if acting by
counsel, it follows logically
that they are to be signed by
their respective counsel.
(4)
The agreed issues may upon
leave granted by the court be
amended upon application made by
the parties.
(5)
It is only when the
parties cannot agree on the
issues before the court that
they can go their separate and
distinct ways to file same.
I have however observed that in
this case, there was no serious
attempt by the parties to file
agreed issues before the court.
Whilst the plaintiff filed his
separate issues alongside his
arguments of law pursuant to
Rule 51 of C. I. 16, on the 22nd
of June 2015, the Defendants on
the other hand filed their
memorandum of issues on 24th
June 2015.
I am however of the opinion
that, once the filing of the
memorandum of issues before this
court is regulated by statute,
to wit, Rule 50 of C. I. 16,
parties and counsel must as far
as is practicable, endeavour to
comply with the steps stated
supra in the Rule.
Even though as a court, there
has been some laxity in the
compliance to the said Rule 50
of C. I. 16, I think the time
has come for us to ensure strict
compliance. This is because, it
is not for nothing that the
framers of the law provided an
avenue for agreed memorandum of
issues. This is perhaps an
opportunity for the parties to
narrow down their differences,
and reach consensus.
However. Since compliance with
this Rule 50 has been honoured
more in the breach than in its
observance, it should not be
held against the parties herein.
THE PROVISO FOR
ARGUMENTS OF LAW – RULE 51 OF
C.I. 16
I have also observed that, Rule
51 of C. I. 16 is also another
rule to which there is no
uniformity of compliance in this
court. This rule provides as
follows:-
51 “The court may, after
the memorandum of issues has
been submitted to it, order any
of the parties to clarify or
state fully in writing any
further argument of law with a
list of the decided cases and
the statute law in support of
his case not already dealt with
in the statement of his case, or
in the memorandum of issues.”
My understanding of the above
rule of procedure is that, it is
the Supreme Court, that may
after the memorandum of issues
has been filed order the parties
to file their “further arguments
of law “by clarifying any
matters that it may deem fit.”
My further understanding of this
rule of procedure is that, after
the memorandum of issues has
been filed, the court may
request any party to explain
fully by clarifying any points
of law already canvassed or
raised in the respective
statements of plaintiff’s case
or defendant’s case in this
arguments of law. The further
argument of law is expected to
be a presentation that will
fully deal with any doubts
raised in the minds of the court
as well as present statutory law
as well as decided cases in
support of any propositions of
law earlier on submitted. The
further arguments of law as
provided for in this rule 51, is
not expected to be a repetition
or rehash of issues of law
already dealt with in the
statement of case of either
party, but an avenue for the
explanation and support of all
legal arguments that were not
stated with clarity or
certainty.
My further understanding is
that, parties and counsel do not
have an automatic right to file
this further arguments of law
without an invitation by the
court. These arguments are
designed to fill vacuum or
lacuna in the statement of the
law in their respective
statements of case with legal
authorities in support.
Once again, this particular rule
has been honoured more in the
breach than in the observance.
In the instant case, even though
the plaintiff was not ordered by
the court to file it, he has
gone ahead to do so. I have also
observed that, the court has in
many instances in the past,
acquiesced in parties and
counsel who filed their further
arguments of law without an
order by the court with kid
gloves.
Even though the plaintiff
appears to be in breach of this
rule, I have found his further
arguments of law very useful and
elucidating.
I believe that in order to
fashion out unanimity in the
enforcement of the rules of
procedure in the Supreme Court,
there should be some uniformity
and certainty in the
applicability of these rules.
That is the only way that the
court can have the benefit of
this rule 51 of C. I. 16.
For example, when the court as
it were legitimized the
plaintiff’s unilateral decision
in filing his further arguments
of law and therefore requested
the Defendant’s to file same if
so minded, the request, was
however not heeded. It is to
prevent incidents like the
instant where one party files
further arguments of law without
an order whilst the other which
is duly requested to file in
response, in order to balance
the equation declines our
request and by so doing relies
solely on their statement of
Defendant’s case, that it is
necessary for the court to
intervene.
Before proceeding to discuss the
issues stated in the separate
memoranda of issues referred to
supra, there are some basic
fundamental constitutional
issues or principles which I
consider as preliminary and
therefore germane to the real
constitutional issues raised in
the memorandum of issues
referred to supra.
I therefore intend to
deal with these preliminary
principles which I hope will
unravel the real and genuine
issues involved. I also believe
that a discussion of these
preliminaries will afford a
better understanding of the
Constitution 1992 and basically
the doctrine of the separation
of powers which is the bedrock
of the Constitution 1992.
PRELIMINARY
CONSTITUTIONAL ISSUES
Preamble to the
Constitution 1992
These provide as follows:-
“THE CONSTITUTION OF THE
REPUBLIC OF GHANA “IN THE NAME
OF THE ALMIGHTY GOD, “WE THE
PEOPLE OF GHANA”,(IN
EXERCISE of our natural and
inalienable right to establish a
framework of government which
shall secure for ourselves and
posterity the blessings of
liberty, equality of opportunity
and prosperity:)
(IN A SPIRIT OF friendship and
peace with all peoples of the
world:
AND IN SOLEMN declaration and
affirmation of our commitment to
Freedom, Justice, Probity and
Accountability.
The Principle of Universal Adult
Suffrage
The Rule of Law
The Protection and Preservation
of fundamental Human Rights and
Freedoms, Unity and Stability
for our Nation;)DO HEREBY
ADOPT, ENACT AND GIVE TO
OURSELVES THIS CONSTITUTION.”
What should be noted is that,
the preamble can be taken to be
in two parts, the
operative and
subordinate parts.
What I consider to be the
operative and constitutive parts
are the words “we the People
of Ghana … Do hereby adopt,
enact and give to ourselves this
Constitution”.
The subordinate parts will be
from the words: “In Exercise of
our natural and inalienable
right to establish …up to and
including all the words therein
to “The protection and
preservation of fundamental
Human Rights and Freedoms, Unity
and Stability for our Nation.”As
has been put in brackets.
If the above preambular
statements are considered
alongside Article 1(1) of the
Constitution 1992, which
provides thus:-
(1)
”The sovereignty of Ghana
resides in the people of Ghana
in whose name and for whose
welfare the powers of government
are to be exercised in the
manner and within the limits
laid down in this Constitution.”
Then a full understanding of the
philosophical underpinnings upon
which the framers of the
Constitution 1992 fashioned it
out will be clearly seen.
This article 1 (1) of the
Constitution raises three basic
principles.
1.
The first is that,
sovereignty resides in the
people, and this is
manifested throughoutall the
principles enshrined in the
constitution that power resides
in the people. Article 125 (1)
on the judiciary for example,
also provides that “Justice
emanates from the people and
shall be administered in the
name of the Republic by the
Judiciary which shall be
independent and subject only to
this Constitution.”
The people, i.e. the citizenry
are the source of all powers in
the Constitution 1992. That is
why, in the operative parts of
the preamble, it is clear that,
it is the people of Ghana, who
have adopted, enacted and given
to themselves this power which
is then delegated as directed in
the Constitution.
2. The second is the thrust
of representative government.
This finds expression in the
words “in whose name and for
whose welfare the powers of
government are to be exercised”.
It is therefore clear that
sufficient indications and
intentions have been given in
this article 1 (1) of the
Constitution 1992 that the said
sovereignty of Ghana which
resides in the people will be
exercised on their behalf by the
government and for their welfare
and
3. Thirdly, the principle
of constitutionalism. This
simply connotes the fact that
the said powers of government
are to be “exercised in the
manner and within the limits
laid down in this Constitution.”
Briefly stated, it means that,
any of the arms of government
and institutions of state
created by and under the
authority of the Constitution
1992 are limited in the powers
that it has and that, the said
institutions of state can only
exercise those powers that have
substantively and procedurally
been granted them.
The Constitution 1992 does not
give absolute power to any of
the arms of government or of the
many institutions of state
created therein. The people have
been recognized as the source of
all power, which they exercise
through a representative
government which in turn
exercises those powers within
constitutional limits, on their
behalf, be it by the President,
the legislature through their
elected representatives in
Parliament and by the Judiciary
on behalf of the people.
The above principles have to be
considered alongside the
provisions in article 289 (1) of
the Constitution 1992 which
provides thus:-
289 (1) “Subject to
the provisions of this
Constitution, Parliament may, by
an Act of Parliament, amend any
provision of this Constitution.
(4)
This Constitution shall
not be amended by an Act of
Parliament or altered whether
directly or indirectly unless
(a)
the sole purpose of the
Act is to amend this
Constitution; and
(b)
the Act has been passed in
accordance with this chapter”
It does appear that by the
provisions of article 289 (1) of
the Constitution 1992 referred
to supra it is only, Parliament,
which has legislative authority
under the Constitution 1992 that
has been given power to amend
the Constitution.
Parliament as the duly elected
representatives of the people
has been granted this sacred
power to amend this
Constitution. The meaning of
this is that, the people of
Ghana have delegated their power
which was vested in them when
they adopted and enacted the
Constitution and re-enforced in
article 1 (1) of the
Constitution 1992 to their
elected representatives in
Parliament. The people as the
constituent power have therefore
delegated this power to the
elected representatives of the
people in Parliament to amend
the Constitution 1992 in clearly
laid down procedures.
Before I proceed any further
with these discussions, it is
also noteworthy to refer to
article 93 (2) of the
Constitution 1992 which vests
legislative power of Ghana in
Parliament. This provides as
follows:-
“Subject to the
provisions of this Constitution,
the legislative power of Ghana
shall be vested in Parliament
and shall be exercised in
accordance with this
Constitution.”
The Legislative power which is
vested in Parliament is not
without restrictions and subject
to many rules and procedures.
For example, it is provided in
article 106 (1) of the
Constitution 1992 as follows:-
“The power of
Parliament to make laws shall be
exercised by bills passed by
Parliament and assented to by
the President.”
The other provisions of article
106 (2) through to clause 14
sets out in detail the
procedures that have to be
followed from the presentment of
a bill in Parliament, through to
its publication in the Gazette,
to its reading for the first
time, to the Committee State, to
its second and third readings by
which time all amendments to the
bill would have been made making
the bill ready for Presidential
Assent.
The other provisions also deal
with the procedure when the
President refuses to assent to
the bill, the reference to the
Council of State and
reconsideration by Parliament
including the comments of both
the President and Council of
State.
There are also provisions in
article 106 (13) for a bill to
be considered under a
certificate of urgency where the
Committee of Parliament
considers that it is necessary
so to do and in such a case the
President can assent to it upon
it’s presentation.
Parliament however before
considering any bill affecting
the institution of chieftaincy
must ensure that the bill has
been referred to the National
House of Chiefs for
consideration before it is
introduced in Parliament.
Article 107 (1)
restricts Parliament from
passing any law that has the
power to alter the decision or
judgment of any court as between
the parties to that decision and
sub-clause (2) restricts
Parliament from passing any
retroactive legislation which
has the effect of adversely
affecting the personal rights
and liberties of any person etc.
except in cases of bills
affecting withdrawals from
public funds as provided in
articles 178 to 182 of the
Constitution 1992.
Furthermore, the Constitution
1992 provides in article 108 as
follows:-
“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 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 alteration of any such
charge otherwise than by
reduction; or
iii.
the payment, issue or
withdrawal from 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.
What is clear from the
provisions of article 108 and
289 of the Constitution 1992, is
that, whilst there is a clear
distinction on the powers of
Parliament in considering bills
touching settlement of financial
matters including the raising of
taxes and withdrawals from the
consolidated fund which cannot
be made without it being
introduced for and on behalf of
the President, there is
infact no such restriction on
the power of Parliament to amend
any of the provisions of this
Constitution in article 289 of
the Constitution 1992, already
referred to supra.
What is the rationale behind
these limitations? It is safe to
conclude that, the intendment of
the framers of the Constitution
is to ensure that the passage of
ordinary Acts of Parliament
under the article 108 situations
have intentionally been made to
be different from passage of
amendments to the Constitution.
In my opinion, it is very
important to make very clear
distinctions here. Under
amendment process in article 289
of the Constitution 1992, the
power to amend the Constitution
has been reserved solely to
Parliament and as will soon be
discussed, since the President,
with respect has no discretion
to refuse to assent to any
amendment bills passed by
Parliament, (see article 291 (4)
of the Constitution 1992 which
provides as follows:-
(5)
“where the bill has been passed
in accordance with this article,
the President shall assent to
it.”)
It follows that, the letter and
spirit behind article 289 (1)
provisions of the Constitution
must be followed.
This is in contra distinction to
passage of ordinary bills into
Acts of Parliament where, as has
already been discussed briefly,
the President may refuse to
assent to a bill passed by
Parliament and may request
Parliament to reconsider their
decision in the light of the
comments by the President and
the Council of State
respectively. There is however
no such restriction on the
amendment powers of parliament
under article 289 of the
Constitution.
It is therefore certain that
roles and discretion if any of
Parliament and the President in
the passage of ordinary bills
into Acts of Parliament and the
passage of an amendment bill
into law under article 289 of
the Constitution are different.
ARTICLE 278
PROVISIONS AND EFFECT
This then brings into focus, the
heavy reliance by the Hon.
Attorney General, the Defendant
herein on article 278. Article
278 of the Constitution 1992
which deals with appointment of
Commissions of Inquiry
providesthus:-
(1)
“Subject to article 5 of
this Constitution, the President
shall by constitutional
instrument, appoint a commission
of inquiry into any matter of
public interest where
(a)
The President is
satisfied that a commission
of inquiry should be appointed;
or
(b)
The Council of State
advises that it is in the
public interest to do so; or
(c)
Parliament, by a
resolution requests that a
Commission of inquiry be
appointed to inquire into any
matter, specified in the
resolution as being a matter
of public importance.”
Emphasis supplied
From the above, what is certain
is that the President in the
appointment of the Constitution
Review Commission pursuant to
Constitution Instrument, 2010 C.
I. 64 acted under the provisions
of this article 278 of the
Constitution 1992.
The powers of the President to
set up Commissions of Inquiry to
inquire into any matter of
public interest if he is
satisfied, under article 278 of
the Constitution are not in
doubt.
The crux of this case
is whether the procedure adopted
by the President in appointing
the C.R.C to collate views from
the public and making
recommendations as set out supra
and the subsequent work of the
CRIC are in conflict with
article 289 provisions of the
Constitution 1992 and therefore
unconstitutional?
Is there really a contradiction
between article 278 and 289 of
the Constitution 1992?
In my opinion, I do not think
there is any contradiction
between the two provisions. This
is because,
1.
Changes to the Constitution, in
the form of constitutional
amendments of the Constitution
should be considered only in
respect of the specific
provisions made there under in
the Constitution for amendment
and this has exclusively been
captured and reserved to chapter
25 procedure.
2.
The matter of public interest
has to be considered objectively
to determine whether it is
constitutional or
unconstitutional in the first
place for the President to
decide subjectively that he is
satisfied that the :
“Public interest” includes any
right or advantage which enures
to or is intended to enure to
the benefit generally of the
whole of the people of Ghana.”
What this means is that, the
provision in article 278 states
in no uncertain terms that the
sole qualification for the
appointment of Commissions of
enquiry is for the President to
be satisfied that is in the
public interest so to do.
COMMISSIONS OF
INQUIRY UNDER ARTICLE 278 (1) OF
CONSTITUTION 1992
Under article 278 (1) of the
Constitution 1992, the President
is mandatorily expected to
appoint a Commission of inquiry
into a matter of public interest
in any of the following
conditions:-
a.
If the President is satisfied
that a commission of inquiry be
appointed.
b.
Upon advise by the Council of
state that it is in the public
interest so to do, and
c.
Upon a resolution passed by
Parliament to the effect that it
is of pubic importance to
inquire into any matter
specified therein.
My understanding of the above
provisions is that, the
President is enjoined to appoint
a Commission of Inquiry under
any of the above conditions.
The first condition really does
not pose much problem, however
it is that which has raised
concerns herein in the instant
case.
The second and third conditions
are quite straight forward. This
is because, when the Council of
State gives an advise on a
matter of public interest
requiring an investigation, the
President is to respond. The
entity and the reasons for
requesting the inquiry would
have been stated in the advisory
opinion.
My only problem therein is that,
the activities of the Council of
State are somehow shrouded in
secrecy and unless press
releases are issued out, one
does not really know what the
Council of State is doing much
more to know what informed their
decision.
Thirdly, the passage of a
resolution by Parliament admits
of no controversy. Reason being
that, the activities of
Parliament are always covered by
Parliamentary debates called the
Hansard, and from this, all
proceedings can be verified.
Can a Commission of Inquiry be
appointed by the President to
inquire into
i. any matter in
respect of which he is satisfied
to be in the public interest?
ii. any matter in respect of
which the Council of State
offers advise that it is in the
public interest so to do? And
iii. any matter in respect of
which Parliament passes a
resolution as requiring the
appointment of a Commission of
Inquiry pursuant to article 278
(1) (c) of the Constitution
1992?
Reading the Constitution
literally, one is tempted to
answer the above questions in
the affirmative. However, if
article 1 (1) of the
Constitution 1992, especially
the principle of
constitutionalism which was
discussed in the earlier pages
of this judgment are considered,
then it is clear that to
every step or right given in the
Constitution 1992, limitations
imposed therein must equally be
respected and complied with.
With those basic constitutional
principles in view, it is clear
that, for example the President
even if he is satisfied that it
is in the public interest to
appoint a Commission of Inquiry
to inquire into the issues of
replacement or revision ofthe
voters register may not do so
because the Constitution 1992
has reserved those functions to
another constitutional body
created under the Constitution
1992, and that is the Electoral
Commission. More on this issue
later in the judgment.
It is therefore safe to conclude
that even though the President
has been given very wide powers
under article 278 (1) of the
Constitution to appoint
commissions of inquiry under the
conditions stated therein, the
appointment of the Commission to
inquire into a specific matter
must itself be constitutional
such that it does not infringe
any of the constitutional
provisions in the Constitution.
The fact that the President was
satisfied that a matter is of
public interest does not
necessarily make the appointment
of the Commission
constitutional. The test
applicable by the President is
subjective and not capable of
any assessment. But once the
basis of the power is from the
Constitution, it must be
assessed under the provisions of
the entire Constitution.
However, when issues of
unconstitutional conduct have
been raised by the Plaintiff
herein into the appointment of
the CRC vis-à-vis and their
terms of reference and the
further works attributed to the
CRIC, then it becomes necessary
for a court such as this Supreme
Court to use an objective test.
I find persuasive support in
this line of thinking from Lord
Atkin’s dissenting opinion in
the case of Liversidge v
Anderson &Anr. [1942] A.C 206,
where he took the view that a
statute which gave sweeping
powers to a Minister of State to
cause the arrest and detention
of persons during war times when
he was satisfied or had
reasonable cause to believe that
such a person to be of hostile
association was too subjective
and not objective, and thus held
that, in such circumstances, the
actions of the Minister ought to
be reviewed by the courts for
the criteria used by the
Minister to be assessed on
objective basis.
I am therefore of the very
humble and respectful opinion
that this court has the power to
inquire into the
constitutionality of the
appointment of the CRC in the
terms of the Plaintiff’s
complaint, drawing some parallel
lessons from Lord Atkin’s
dissenting opinion in the
Liversidge v Anderson casa,
referred to supra.
Lord Atkin stated in part as
follows:-
“I protest, even if I do it
alone, against a strained
construction put on words with
the effect of giving an
uncontrolled power of
imprisonment to the Minster… If
it be true, as for the foregoing
reasons, I am profoundly
convinced it is, that the Home
Secretary has not been given an
unconditional authority to
detain,… The appellant’s right
to particulars, however, is
based on a much broader ground,
a principle which again is one
of the pillars of liberty in
that in English law every
imprisonment is prima facie
unlawful and that it is for a
person directing imprisonment to
justify his act…”
I am minded to adopt
the persuasive words of Lord
Atkin and apply them to our own
situation in this case and hold
and rule that this court can
indeed inquire into the reasons
if any as to why the President
was satisfied in establishing
the CRC pursuant to C.I. 64 and
determine the constitutionality
or otherwise of that action.
In my candid opinion, the use of
the C.I. 64 to seek toamend the
constitution is a distraction.
Why do I say so? I say so
because whilst the power granted
the President in article 278 is
exclusive to the President, and
limited in scope and content
that in article 289 is exclusive
to Parliament, and relevant on
the issue of amendment which is
germane to the action herein.
If one is minded to favourably
consider the procedure used by
the President in C. I. 64, then
one can safely conclude that the
work of the CRC should have been
handed over to Parliament to
adopt and implement those
portions of their work that they
intend to use.
In my view, the above procedure
could have been adopted if there
is or was a vacuum. But, there
has not been established any
vacuum and it is therefore
certain that the appointment of
the CRC pursuant to C.I. 64 was
an unconstitutional conduct
which must therefore not be
allowed to fester under our
constitutional scheme of things
unless the work of the CRC is
used as a basis of the
introduction of the amendment
bill into Parliament without any
reference to the CRC and CRIC.
In other words, Parliament takes
control of the work of the CRC
entirely without any
limitations.
ARGUMENTS ON
SEPARATION OF POWERS
As is evident in article 1 (1)
of the Constitution 1992, the
supremacy of the Constitution
1992, has been established.
Furthermore, the said article
states that the powers of
government are to be exercised
only in the manner and within
the limits laid down under the
Constitution.
For example, it is trite
knowledge that there are
basically three arms of
government, i.e. the tripod.
These are the Legislature,
Executive and the
Judiciary. All the above
constitutional arms of
government even though inter
relate and overlap sometimes
have very distinctive roles,
such that, one cannot usurp the
powers and roles of the other.
In the Constitution 1992,
whereas chapter eight deals
exclusively with the Executive,
chapter ten deals with the
Legislature and chapter eleven
with the judiciary.
Just for purposes of emphasis
and clarity, article 57 (1) and
58 (1) of the Constitution 1992
vest governmental authority and
that of the Executive in the
President.
Article 58 (1) provides thus:-
“The executive
authority of Ghana shall vest in
the President and shall be
exercised in accordance with the
provisions of this
Constitution.”
On the other hand, article 93
(2) provides as follows:-
“Subject to the
provisions of this constitution,
the legislative power of Ghana
shall be vested in Parliament
and shall be exercised in
accordance with this
constitution.”
Finally, article 125 (3)
provides that
“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”.
It can therefore be seen that
every organ or arm of government
has by the special architecture
of the Constitution its own
powers which cannot be usurped
by any other arm. Even though
the various arms of government
have precedence in the scheme of
things, none can usurp the
powers of each other. See
article 57 (2) of the
Constitution 1992.
For example, whilst the
Constitution 1992 allows some of
the other arms of government to
participate in the activities of
the other arm of government, it
does so by a carefully and well
calculated procedure that does
not create tension, chaos or
confusion.
Whilst the President can be said
to participate in the passage of
bills into Acts of Parliament by
introduction of bills into
Parliament, by assenting to such
bills into Acts, and can
sometimes delay the passage of
ordinary bills into Acts, no
such participatory role is
granted the President in
procedures envisaged under
article 289 of the Constitution
where the President is just
mandatorily required to assent
to an amendment motion.
Secondly, even though both the
President, who is the head of
the Executive and Parliament all
have roles in the appointment
processes of especially the
Supreme Court Justices, where
there is a mandatory
Parliamentary vetting and
approval process, there is
however no role reserved for
them thereafter in the
performance of the judicial
functions of the Justices of the
Supreme Court.
Looking basically at the
provisions of the Constitution
1992, I am of the opinion that,
the Constitution 1992 has been
so carefully crafted as to
prevent the usurpation of the
roles and functions of each arm
of government and or
constitutional body. The turf of
each arm of government is so
very well protected as can be
seen in the following
illustrations by analogy.
1.
See article 290 (6) where the
President is mandatorily
required to assent to a bill
that has been duly passed in
accordance with an amendment
process of an entrenched clause.
The President has no delay
powers in this respect. Provided
a bill has been accompanied with
the certificates mentioned in
article 292 (a) and (b) by the
speaker and the Chairman of the
E.C respectively, the President
has no discretion in the matter.
He is bound to assent to it.
2.
Furthermore, article 291 (4)
also provides that the President
shall assent to the bill if the
amendment bill of the
Constitution has been passed in
accordance with the
Constitution.
The indication for me here is
very clear. And this is that, an
Act, amending the Constitution
has been put a notch higher than
the passage of an ordinary bill
introduced into Parliament. The
lesson here is clear. The power
given by the people to their
constitutional representatives,
in Parliament cannot just be
wished away by the controlling
powers of the President. Once it
has been established that the
President’s role in the passage
of an amendment bill is just
peremptory, it means that, the
powers of the people in article
1 (1) of the Constitution which
have been delegated to the
members of Parliament is not to
be shared with the President in
the way of ordinary bills of
Parliament.
It is in this respect that I
agree with the plaintiff when he
states in his paragraph 25 of
the statement of case that it is
impermissible for the President
to misapply his article 278 (1)
powers to undo what the framers
of the Constitution have taken
so much skill to design.
ISSUES FOR
DETERMINATION
Having discussed the facts and
some basic underlying
constitutional principles in
this case so far, I think the
time is ripe for the issues
identified and isolated be dealt
with in line with the facts and
principles of law.
1. Whether the setting up of
the Constitutional Review
Commission CRC, Pursuant to C.I.
64 With its Terms of Reference
already stated supra which is
basically to collate views on
proposals to amend the
Constitution 1992 is
unconstitutional vis-à-vis
article 278 (1) of the
Constitution 1992 and chapter 25
of the Constitution 1992.
2. Whether the President has
further powers to set up the
Constitutional Review
Implementation Committee with
the mandate to implement the
amendment agenda embarked upon
by the CRC under the provisions
contained in chapter 25 of the
Constitution 1992 already
referred to supra.
3. Finally, whether
Parliament’s role and power to
amend the Constitution 1992 as
provided generally in chapter 25
of the Constitution is exclusive
to it and cannot be delegated
even to the President.
ISSUE ONE
1.
WHETHER THE SETTING UP OF THE
CONSTITUTIONAL REVIEW COMMISSION
(CRC), PURSUANT TO C.I. 64 WITH
ITS TERMS OF REFERENCE ALREADY
STATED SUPRA WHICH IS BASICALLY
TO COLLATE VIEWS ON PROPOSALS TO
AMEND THE CONSTITUTION 1992 IS
UNCONSTITUTIONAL VIS-À-VIS
ARTICLE 278 (1) OF THE
CONSTITUTION 1992 AND CHAPTER 25
OF THE CONSTITUTION 1992.
There is no doubt that, the
Constitutional Review
Commission (CRC) was
established by the late
President Atta-Mills pursuant to
article 278 (1) (a) of the
Constitution 1992 which for
purposes of emphasis provides as
follows:-
“Subject to article 5 of this
Constitution, the President
shall, by constitutional
instrument appoint a Commission
of Inquiry into any matter of
public interest where:-
(a)
The President is satisfied that
a commission of inquiry should
be appointed; or”
1. I have already pointed out
that, a court such as this court
reserves the right to inquire
into the reasons for the
President’s satisfaction to
determine whether it is
subjective or objective, and
therefore constitutional or
unconstitutional.
2. Secondly, it has to be
determined by this court whether
the said action in setting up
the CRC to undertake its terms
of reference bearing in mind
what it actually did and it’s
off shoot the CRIC are doing,
are unconstitutional the
provisions in chapter 25 of the
Constitution.
MarfulSau J.A, sitting as an
additional Judge of the High
Court Accra, (Fast Track
Division) had the opportunity
to address relevant issues which
I consider to be germane to the
instant case in case No. Acc
39/2010 dated 10th
August 2010 intitutled The
Republic v Charles Wereko
Brobbey and Kwadwo Okyere
Mpiani.
It is instructive to set out
some brief and salient facts of
this case.
FACTS
Charles Wereko Brobbey was the
Chief Executive Officer of the
Ghana @ 50 secretariat. Kwadwo
Okyere Mpiani was the Chairman
of the National Planning
Committee of the Ghana @ 50
celebrations and was also the
former Chief of Staff and
Minister for Presidential
Affairs under the Kufuor
administration.
The two were charged before the
High Court with four counts of
willfully causing financial loss
to the State contrary to
section 179 A (3) (a) of the
Criminal Offences Act, 1960 (Act
29). The two pleaded not guilty
to all the charges and before
prosecution could start adducing
evidence the two accused persons
filed applications which
challenged the jurisdiction of
the court.
In substance, the accused
persons challenged their
prosecution on the criminal
charges arising from adverse
findings made against them by
a Commission of Inquiry under
article 280 (1) (2) (3) (4) (5)
and (6) of the Constitution and
basically asked that the charges
against them be stayed or struck
out and the action dismissed.
ARGUMENTS BY COUNSEL
FOR APPLICANTS
At the court, learned counsel
for the accused
persons/applicants argued
strenuously that the prosecution
mounted against them violated
articles 278 and 280 of the
Constitution 1992.
The main thrust of their
arguments was that the charges
preferred against the applicants
by the Attorney-General was
wrong because the case
originates from the adverse
findings of the Ghana @ 50
Commission of Inquiry.
The Applicants also argued that
they have a right of appeal
against the said findings.
Counsel also traced the
constitutional history of
Commissions of Inquiry in Ghana
before the 1969 Constitution and
submitted that the framers of
the 1969, 1979 and 1992
Constitutions accepted the
proposal that the findings of
Commissions of Inquiry should no
longer form the basis of
criminal trials.
After the arguments of the
learned Attorney-General were
considered by the Court and
dismissed as not raising any
issues of substance, Marful-Sau
J.A, stated in his very erudite,
and incisive ruling setting down
the issue for determination as
follows:-
“Having heard counsels for the
accused persons and the
Republic, and having examined
and studied the process and
exhibits filed in this
application I am of the view
that the application raises one
fundamental issue to be
resolved. That issue is
whether or not the adverse
findings or the report of the
Ghana @ 50 Commission constitute
a judgment as defined by Article
280 of the Constitution and if
so whether or not the Republic
acting through the
Attorney-General can mount this
prosecution in the circumstances
of this case having regard to
the provisions of Article 278
and 280 of the 1992
Constitution.”
The Plaintiff also greatly
relied on the decision of
Marful-Sau J.A, in the case just
referred to, in support of his
contention that, the provisions
in article 278-280 of the
Constitution 1992, i.e.,
chapter 23 provisions do not
grant the President an all
purpose commission power. In
view of this, I will refer in
detail to the salient issues
raised by my respected brother
Marful-Sau J.A in his ruling.
But before I do so, it is
pertinent to observe that, I am
aware the case relates to the
institution of criminal charges
against persons arising from the
findings of a Commission of
Inquiry under article 278 (1)
(a) of the Constitution. Despite
the seeming differences, the
value is the same and the ratio
in the case is consistent with
the issues at stake in this
case.
For example, in paragraphs 17,
18, 19, 20, 21 and 22 of the
Plaintiff’s Arguments of Law,
pages 13, 14 and 15 the
Plaintiff stated as follows:-
“Plaintiff further submits that
the prevailing jurisprudence
also supports the
characterization that chapter 23
commissions are quasi-judicial
in nature, not Constitution
reviewing nor drafters of
amendment bills. The most
erudite and elaborate analysis
on this issue is provided in
Republic v Wereko-Brobbey and
Mpiani [2010]. In that
case, Justice Samuel Marful-Sau
(Justice of Appeal) traced the
constitutional history and
development of Commissions of
Inquiry by analyzing the
memorandum on the proposal for a
Constitution of Ghana, 1968 and
the proposals for the
Establishment of a Transitional
(Interim) National Government
for Ghana, 1978. The analysis
explains the reasoning behind
the establishment of Commissions
of Inquiry and underscores that
the proposals in those documents
formed the basis of chapter 23
of the extant (1992)
Constitution on Commission of
Inquiry.”
18. Justice Marful-Sau described
the rationale behind the
establishment of Commissions of
Inquiry as stated in paragraph
301 of the 1978 proposals as
follows:-
“In sum, it is to
accord the President the
opportunity to cause
investigations into certain
matters of public importance by
an impartial and independent
body. And because the
findings of such a body can have
serious legal consequences for
the persons affected thereby
including adverse impact on
their reputation in society,
such persons should be able to
challenge the soundness or
legality of such findings in the
courts of law, hence the
arrangement that such findings
be deemed to be a judgment of
the High Court, from which an
appeal shall be as of right to
the Court of Appeal.”
19. Justice Marful-Sau also
notes that
“This case for me reveals
a very important constitutional
development in this country,
regarding the legal effects of
findings or reports of
Commissions of Inquiry appointed
under the Constitution. It is
clear from my findings herein
that such Commissions of Inquiry
as established have undergone
remarkable constitutional
development from the 1969
Constitution which ought to be
recognized, registered and
sealed with judicial stamp of
this country. This is a solemn
and sacred duty that the courts
are established to do”.
20. The learned Justice then
recites the Commissions of
Inquiries that had been
established thus far under the
1992 Constitution as
(i) The Commission of
Inquiry (International Transfer
of Football Players) Instrument,
1999 established under C. I. 22
of 12th March, 1999,
(2), The Commission of Inquiry
(Accra Sports Stadium Disaster)
Instrument, 2001 established
under C. I. 34 of 11th
May 2001 (3), The Commission of
Inquiry (Yendi Events)
Instrument 2002 established
under C. I. 36 of 26th
April 2002 (4), The Commission
of Inquiry (Ghana @ 50)
Instrument, 2009 established
under C. I. 61 of 1st
June 2009.”
21. The learned Justice then
highlights the importance of
understanding the nature and
character of Commissions of
Inquiry as well as their
consequences and legal effect.
Indeed by Article 280 of the
Constitution the reports of all
the above commissions were
deemed to be judgments of the
High Court and persons affected
by the adverse findings had the
constitutional right of appeal
to the Court of Appeal. It is
however a matter of judicial
notice that persons against whom
adverse findings were made by
the Commission of Inquiry into
the Yendi events and the
Commission of Inquiry into the
Accra Sports Stadium Disaster
were prosecuted in the High
Court, notwithstanding the clear
provisions of Article 280 of the
Constitution, which clearly
represent the aspirations of the
great men and women who
engineered our 1969, 1979 and
the 1992 Constitutions, the
aspiration being that findings
of Commissions of Inquiry should
never develop into criminal
trials.”
22. The learned Justice
concludes his judgment by
emphasizing the need for us as a
nation to develop and advance
our constitutional dispensation.
I have tried to show in this
ruling the wisdom behind the
establishment of Presidential
Commissions of Inquiry under our
constitution. It is to enable
the President appoint citizens
of the required expertise to
impartially and independently
investigate matters of national
importance, to evaluate the
performance of our public
institutions with a view of
ensuring and maintaining
efficiency and a high standard
in our public administration.
That exercise as rightly stated
in the constitutional proposals
of 1968, and 1978 could have
serious negative consequences on
the reputation of public office
holders in such institutions
investigated by such Commission
of Inquiry, hence the need to
give affected people the right
to challenge the soundness of
the findings. A citizen’s right
of appeal has always been
respected since ancient times.”
This is why I am of the
considered view that, at best
the work of the CRC can be said
to be a report of the Commission
on the weakness of the
Constitution and handed over to
the appropriate agency,
Parliament to consider if there
is a need for amendments. It is
unconstitutional to establish
the CRC with the sole agenda to
usurp Parliament’s powers.
23. The foregoing analysis of
Chapter 23 of the Constitution,
the Commissions of Inquiry
(Practice and Procedure) Rules
2010 C. I. 63 and the case law
provides compelling evidence
that chapter 23 does not grant
the President an all-purpose
commissioning power. It is
manifestly evident that the
commissions contemplated under
chapter 23 are quasi-judicial in
nature. As highlighted in the
memorandum on the Proposal for a
Constitution for Ghana (1968)
the progeny of Commission of
Inquiries, a Commission is “an
impartial and independent body
charged with the duty of finding
facts,” in a matter of public
interest where political
considerations are apt to
bedevil an issue”. This means
that the procedure of such an
inquiry is bound to be
inquisitorial rather than
accusatorial as is the case with
criminal trials. This will be so
since the inquiry will be fact
finding and at worst censorial.
We do not think that public
inquiries should ever develop
into criminal trials”.
24. Plaintiff submits that the
primary function of these
Commissions is to “make a
full, faithful and impartial
inquiry into matters specified
in the instrument of
appointment”, not to ascertain
from the people of Ghana, their
views on the operation of the
Constitution, (whatever that
means); nor “to articulate the
concerns of the people of Ghana
on amendments that maybe
required for a comprehensive
review of the Constitution, and
certainly not to, “make
recommendations to the
Government for consideration and
provide a draft bill for
possible amendments to the 1992
Constitution.” It is Plaintiff’s
contention that ascertaining the
views of Ghanaians on the
operation of the Constitution
and drafting possible amendments
to the 1992 Constitution fall
beyond the scope of Article 278
Commissions.”
I have spent a considerable
length of time on the decision
of Marful-Sau J.A in the ruling
and how the Plaintiff has
articulated that decision to
support his arguments. Even
though the defendant’s did not
respond to the Plaintiff’s
Arguments of Law, I reckon that
the Defendant’s have already
addressed same in their
statement of case to which I
have already copiously referred
to supra.
However, by the very arguments
contained therein, wherein the
Defendants anchored their
defence as follows:-
On the preamble to the
Constitution 1992, the Supremacy
of the Constitution and the
vesting of the power of the
people in the Government,
thereby clothing the Government
with power to effect amendment
processes to the Constitution
all in the name of the people;
all thesein my opinion are not
convincing, lack substance and
inconsistent with sound
constitutional principles
already discussed supra.
For example, when one considers
the supremacy of the
Constitution, then it behoves
that, the cardinal principle of
the Constitution 1992 which is
separation of powers, then it is
clear that each arm, institution
and or constitutional body must
take it’s source of function,
power and activity from the
Constitution 1992.
Juxtaposing these principles
with the facts in this case as
well as the relevant
constitutional provisions in
Chapter 23, to wit article 278
to 280 and chapter 25, to wit
articles 289 to 292, it goes
without saying that the
President cannot appoint a
Commission and a Committee to
draft amendment bills for
Parliament to consider thereby
usurping entirely the
constitutional mandate of
Parliament. It should at this
stage be made clear that
procedure rules in the standing
orders of Parliament are
subordinate to constitutional
provisions, reference article 11
of the Constitution. Those rules
on introduction of bills into
Parliament cannot supersede
clear constitutional provisions
especially where there is no
such provision empowering the
President to introduce amendment
bills into Parliament.
It is clear from the
Constitution 1992 that the
President for example cannot
establish a Commission of
Inquiry to investigate every
matter in respect of which he is
satisfied that it is in the
public interest so to do. A few
examples will suffice here.
1.
The revision of the voters
register is undoubtedly a very
important matter in any advanced
democracy, and Ghana is no
exception. Some notable
political parties and other
Civil Society groups have called
for the total replacement of the
voters register. This very
important matter has recently
generated into violence when a
group of persons under the aegis
of (LMVCA) Let my vote count
alliance, organised a protest
march. They were met with some
alleged Police brutalities
according to confirmed news
reports. Whilst the President
can establish a Commission of
Inquiry into the Police handling
of the protest march, I am not
so certain with the main
request, that of the total
replacement or revision of the
voters register. What must be
noted is that, even if the
President is satisfied that the
replacement or revision of the
voters register is a matter of
public interest which it is
anyway, he is not allowed by
article 45 of the Constitution
1992 to do so. Those functions
are exclusively reserved for the
Electoral Commission. That is my
candid opinion on this matter.
2.
Secondly, the recent alleged
Judicial Bribery Scandal which
has hit the Judiciary as a
result of the expose of the ace
investigative Journalist, Anas
Aremeyaw Anas to me is a matter
so grave and important that the
President ought to be satisfied
that it is in the public
interest to establish a
Commission of Inquiry to
investigate. However, even if
the President is minded so to
do, he is not permitted by the
Constitution 1992. This is
because, the Constitution 1992
has very elaborate provisions in
articles 146 (3) through to 146
(11) on how to deal with stated
misbehavior of Superior Court
Judges. I believe it is in
compliance with those
constitutional provisions that
the President in his wisdom
referred the alleged acts of
misbehavior captured on video to
the Chief Justice for her to
determine whether a prima facie
case has been established to
kick start the process.
All these examples go to prove
the point that where a specific
constitutional provision has
provided a procedure for the
doing of an event, or has
reserved a function for a
specific arm of state or
institution for that matter, it
is to that arm, or institution
of state that compliance will be
expected from. Any attempt to
cede this power and function to
any other body or institution
will be deemed as
unconstitutional.
Issue one as captured above
will be determined on the basis
that the President acted
unconstitutionally in
establishing the CRC to collate
views from the public with a
further rmandate to propose
draft amendment provisions to
the Constitution, using the
procedure in article 278 (1) (a)
of the Constitution 1992.
As has been incisively pointed
out, that article does not
clothe the President with an all
purpose commissioning power to
do what he did. The
establishment of the CRC
pursuant to C. I. 64 with its
terms of reference in (c) is
therefore unconstitutional. At
best, Parliament can use the
work of the CRC but not as a
reference point.
2. Whether the President
has powers to set up the
Constitutional Review
Implementation Committee with
the mandate to implement the
amendment agenda embarked upon
by the CRC under the provisions
contained in chapter 25 of the
Constitution 1992 already
referred to supra.
The plaintiff’s case in respect
of the above issue really admits
of no controversy whatsoever.
This is that, after the
Government issued the White
Paper accepting some of the
recommendations of the CRC, it
then set up the CRIC, to
implement in strict compliance
with chapter 25 of the
Constitution, Amendments to the
Constitution, in respect of
those recommendations that have
been accepted. Pursuant to the
instructions that have been
given them, the CRIC has
presented a draft bill for the
amendment of 34 entrenched
provisions of the Constitution
in addition to the introduction
of new entrenched provisions.
It is the plaintiff’s case that
all these are contrary to the
provisions of chapter 25 of the
Constitution 1992 which deals
with the procedure for the
amendment of the Constitution.
By the provisions of article 289
(1) of the Constitution 1992, it
is provided thus:-
“Subject to the provisions of
this Constitution, Parliament
may by an Act of Parliament,
amend any provision of this
Constitution.
(2) This Constitution shall not
be amended by an Act of
Parliament or altered whether
directly or indirectly unless-
(a) the sole purpose of
the Act is to amend this
Constitution, and
(b) the Act has been
passed in accordance with this
chapter.
If one considers the above
provisions literally, it can
easily be concluded that all
amendments of any provisions of
the Constitution must be
initiated in Parliament and
concluded therein by following
all the steps laid down in
articles 290 (1)(2) (3)(4) (5)
and (6) and article 291 (1) (a)
(b) (2) (3) and (4) and article
292 of the Constitution 1992.
As has already been stated
supra, the procedure for the
amendment of entrenched and non
entrenched provisions are
separate and distinct.
What is of particular importance
is the fact that, in all cases,
where the Amendment process of
either an entrenched or
non-entrenched provisions has
been adopted and passed by
Parliament, the President has
only a ministerial role to play,
he shall assent to the bill.
Articles 290 (6) and 291 (4)
provide as follows:-
“Where a bill for the amendment
of an entrenched provision has
been passed by Parliament in
accordance with this article,
the President shall assent to
it.”
In respect of a non-entrenched
provision, article 291 (4)
provides thus:-
“Where the bill has been passed
in accordance with this article,
the President shall assent to
it”.
The Defendants raise a very
important point, that is to say
that, once the amendment
processes especially of
entrenched provisions does not
involve only Parliament, it
follows that the amendment
process is neither the preserve
nor an exclusiveterritory for
Parliament. They argue that the
President is one of the stake
holders in the passage of any
such amendment. The Defendants
continue their arguments further
by asserting that if the framers
of the Constitution had intended
to cloth Parliament alone with
the amendment process, they
would have done so in very clear
terms by using appropriate
language.
I have considered the use of the
words “subject to the provisions
of this Constitution” in article
289 (1) of the Constitution 1992
and am not impressed with the
Defendants arguments that the
use of the said proviso gives
the President the power to use
the article 278 (1) (a)
provision of the Constitution to
set up the CRC and by necessary
implication the CRIC.
However, as I have already set
out in extenso in the resolution
of issue one supra, the article
278 (1) (a) provisions does not
permit the President to set up a
Commission of Inquiry to collate
views with the view to amending
of the Constitution. This is
because the Constitution has
made elaborate provisions on
that process by which it is
Parliament, which exercises that
role as one of it’s legislative
functions. This is therefore
consistent with the Constitution
1992.
Having considered the facts, the
Constitution, case law as well
as canons of interpretation, I
am of the opinion that a
comprehensive review of the
Constitution as is being
implemented by the CRIC is an
act sui generis, not just “any”
matter of public interest to be
taken care of by the generic
provisions relating to adhoc
Commissions of Inquiry.
However, even if one considers
and construes article 278 (1)
broadly as the Defendant’s
contend, one must ask whether
any specific articles of the
Constitution derogate from that
broad power. The canon of
interpretation “generalia
specialibus non derogant” which
“generally means general things
do not derogate from special
things”, and this canon has been
used by our courts. See the
opinion of Twum JSC in the case
of In Re Parliamentary
Election for Wulensi
Constitutency; Zakaria v
Nyimakan [2003-2004]SCGLR 1
where, Twum JSC speaking for the
majority stated thus:-
“In order that the
clear intention of the framers
of the Constitution may not be
aborted, we are convinced that
this is a proper case to apply
the maxim generalia
specialibus non derogant. We
hold that the appeal provision
in article 99 (2) supersedes the
general appellate jurisdiction
of the Supreme Court under
article 131 (1) (a).”
In real terms what
this means is that, when two
articles of the Constitution or
statute are in apparent
conflict, the provisions of the
general statute must yield to
the specific statute(but
there is no conflict even in
this instant).
In further consideration of this
matter, one must find out if
there are any specific articles
in the Constitution dealing with
Constitutional Amendment for
which the general Article 278
(1) must succumb to?
The answer is a big yes, since
there is a whole chapter in the
Constitution dealing exclusively
with constitutional amendment,
i.e. how to amend the
Constitution. This express and
exclusive power has already been
referred to in article 289 (1)
supra.
Chapter 25 of the Constitution
1992 has categorised the
amendment processes into two.
As I have already stated supra,
the procedure for amending an
entrenched clause is very
rigorous with the Council of
State and the general public all
involved in addition to
Parliament.
Whilst an amendment
of an entrenched clause must
secure the approval of 75% of
voters in a national referendum
with a minimum voter
participation rate of 40% of
registered voters, that of a
non-entrenched clause requires
the approval of only a majority
of 2/3 of all members of
Parliament.
In conclusion, I am of the
considered view that the
President, even though he is the
Chief Executive Officer of the
State and the first Gentleman
for that matter, has only a
nominal role in the passage of
an amendment bill by Parliament.
The President is
mandatorily required to assent
to a bill that has the speaker’s
certificate to the effect that a
bill for amendment has been
taken through all the required
procedures necessary and
stipulated in articles 291 and
292 of the Constitution 1992 as
well as certification by the E.
C. Chair.
In the premises, I am of the
view that the work of the CRIC,
who have been hand picked by the
President to initiate and
virtually implement the various
amendment bills as if Parliament
did not matter in the equation
is not only wrongful, unlawful
but is also unconstitutional
considering articles 289 to 292
of the Constitution.
ISSUE THREE
FINALLY, WHETHER
PARLIAMENT’S ROLE AND POWER TO
AMEND THE CONSTITUTION 1992 AS
PROVIDED GENERALLY IN CHAPTER 25
OF THE CONSTITUTION IS EXCLUSIVE
TO IT AND CANNOT BE DELEGATED
EVEN TO THE PRESIDENT
When the provisions of Article
289 are compared with article
278 (1) under which the C.R.C
was established, it gives the
clearest indications that it is
only Parliament that has
specifically been given the
power to effect amendments to
the Constitution.
This is because, even though
article 278 (1) (a) gives power
to the President to appoint a
commission of inquiry into any
matter of public interest where
the President is satisfied that
a Commission of Inquiry should
be appointed, reading the
provisions in context to the
other provisions in the rest of
chapter 23 of the Constitution
1992 gives very clear
indications that the intendment
of article 278 (1) (a) is
definitely not to usurp, or
share the amendment process of
the Constitution 1992 with
Parliament. In any case the
intendment of article 278 of the
Constitution was not what it was
put to use in the establishment
of the CRC.
From the contents of the entire
chapter 23, I am of the
considered opinion that the
matters in context therein are
issues of public importance or
interest in respect of which
some wrong doing has been
suspected, or loss or damages
suffered by the state as a
result of which the need to
inquire into them and make
findings therein aimed or
directed at finding solutions
therein arises. I believe that,
this way of thinking is
justification for the provisions
equating the findings of the
Commission of Inquiry
established under Article 278
(1) (a) to the decision of a
High Court, from which an appeal
automatically lies to the Court
of Appeal.
In any case, as has been
discussed elsewhere in this
judgment, the criteria stated in
article 278 (1) (a) of the
Constitution 1992 is for the
President to be satisfied. Once
the President has initiated
action under that provision by
establishing a Commission of
Inquiry, it follows that he is
satisfied that it is in the
public interest so to do.
However, if in expressing that
satisfaction, he veers into
areas reserved for other arms of
government or constitutional
bodies established under the
Constitution 1992, then
afortiori, an objective test and
appraisal will have to be
undertaken to ensure that the
sanctity of the Constitution
1992 is not compromised.
Construing the entire provisions
of chapter 23 and those of
chapter 25 purposively, I come
to only one irresistible
conclusion that Parliament’s
role and power to amend the
Constitution 1992 contained in
article 289 is exclusive and
cannot be delegated to any other
organ or arm of government,
including even the President.
In this respect, the decision of
Sowah J.A as he then was in
Tufuor v Attorney General,
already referred to supra that a
Constitution is not an ordinary
Act of Parliament but a sacred
document which embodies their
will as well as mirror’s their
history. Such a document cannot
be subject to the amendment
processes initiated by one
person, the President. In
circumstances like this, the
latter and spirite of the
relevant articles must be
considered. When this is done,
article 278 (1) becomes
irrelevant and of no
consequence.
I have stated elsewhere in the
judgment that the amendment
architecture of the Constitution
1992 has been so carefully
crafted and designed to ensure
that it is the elected
representatives of the people in
Parliament representing various
shades of political interests
that have been endowed and given
the power to commence the
amendment process, tele guide it
through all the other processes
to completion, after which the
President is mandatorily
required to assent. To me, this
makes it quite clear that the
power granted to Parliament is
therefore exclusive. It is for
good reason that these have been
provided to ensure that no
President shall hijack the
amendment process of the
Constitution 1992.
Drawing parallels from the
observations and analysis made
in respect of the other issues
raised supra and considering the
pleadings of the parties in this
case, I am of the considered
view that this issue three (3),
like the other issues be
resolved thus, that Parliament’s
role in chapter 25 on amendment
process of the Constitution is
exclusive to it, and cannot be
delegated even to the President.
CLOSING REMARKS
As I move gradually to the
closing pages of this judgment,
two related issues have been
stirring at me in the face.
These are
i. Is it too late in
the day for this court to
intervene in the matter?
ii. Is this court competent
enough to grant the reliefs
which the plaintiff seeks?
What the Defendants intend to do
by their proposals is to place
before Ghanaians through the
introduction of amendment bills
of entrenched provisions to
Parliament for the process of
amendment to start. Secondly,
they intend the electorate to do
block voting on the issues
presented to the people in a
referendum. To me, this
procedure being embarked upon by
the CRIC is a real danger to the
Constitution 1992. It is
dangerous to allow such a
massive amendment of the
Constitution 1992 to be
undertaken without the active
involvement of the duly
appointed institution for that
purpose, Parliament. This is
what Chief Justice Marshall
frowned upon in his locus
classicus decision in the case
of Marbury v Madison, 1
cranch 137, 2 L.E.d. 60 (1803).
I shall return to this case
shortly.
1. The question can be asked
as to why the Plaintiff waited
all this while for the processes
of the CRC to have been
completed before commencing his
action? That of the CRIC has
itself reached an advanced stage
before the suit was filed
leading to the implementation
process being stalled.
I have observed that, the Court
of Appeal, sitting as the
Supreme Court in the celebrated
case of Tuffuor v
Attorney-General already
referred to had to make
pronouncements on estoppel. This
arose because it was contended
on behalf of the A.G. in the
Tuffuor case that, it was the
Chief Justice himself who
elected by accepting the
nomination and appearing before
Parliament to be vetted for
re-appointment to the position
of Chief Justice, a position he
held before the coming into
force of the Constitution 1979.
It was further argued on behalf
of the A.G. that the Chief
Justice should be deemed to have
any immunity provided under the
Constitution waived and that he
should accept the consequences
of his own conduct.
It was however held by the court
that
“The argument founded on
estoppel by election would be
dismissed because the
constitution 1979, article 1 (2)
has provided that the
“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 and of no effect.”
From the above decision, it is
clear that the Supreme Court
dismissed this estoppel argument
basically because of the
principle of the supremacy of
the Constitution. And this
principle as I have stated in
the basic principles are the
core underlying principles in
article 1 (1) of the
Constitution 1992, on
constitutionalism.
In that respect, such an
argument, even if it had been
made would have been dismissed.
I have raised and discussed it
entirely out of abundance of
caution.
It should be noted that, article
1 (2) of the Constitution 1979
are the same provisions in
article 1 (2) of the
Constitution 1992 and therefore
have the same effect.
2. The second related issue of
whether this court is competent
to deal with the plaintiff’s
reliefs has from time immemorial
been pronounced upon by Supreme
Courts with written
Constitutions. In this respect,
even though there are quite a
number of notable
pronouncements, from the courts
in Ghana, I deem it expedient to
take some persuasive guidance
from the words of Marshall C. J,
in the locus classic us case of
Marbury v Madison, already
referred to supra.
This is what the Court decided
on the issue of supremacy of the
Constitution and the role of the
Judiciary to say what the law
is.
“To what purpose are
powers limited and to what
purpose is that limitation
committed to writing if these
limits may at any time, be
passed by those intended to be
restrained? The distinction
between a government with
limited and unlimited powers is
abolished, if those limits do
not confine the persons on whom
they are imposed, and if acts
prohibited and acts allowed, are
of equal obligation. It is a
proposition too plain to be
contested, that the Constitution
control any legislative act
repugnant to it, or that the
legislature may alter the
Constitution by an ordinary
act.”
Continuing further, Marshall C.
J. expounded the law thus:-
“It is emphatically
the province and the duty of the
judicial department to say what
the law is. Those who apply the
rule to particular cases, must
of necessity expound and
interpret that rule. If two laws
conflict with each other, the
courts must decide on the
operation of each.”
The principles stated so
beautifully by Marshall C. J. in
the Marbury v Madison case have
been applied in the following
Ghanaian cases just to mention a
few:-
1.
Amidu v President Kufuor
[2001-2002] SCGLR 86, at 154-155
2.
Brown v A. G. (Audit Service
case) [2010] SCGLR 183, at 237
3.
Appiah-Ofori v A. G. [2010]
SCGLR 484, at 549
The essence of the principle of
Constitutionalism which has been
specifically embedded in article
1 (1) of the Constitution 1992
and also dealt with in some of
the above cases is that, states
with written constitutions, such
as Ghana and the U.S, intend
those Constitutions to be their
basic and paramount law. It
therefore follows that, the
concept of those governments is
that, all the powers of the arms
of government and indeed of any
constitutional body or
institution set up by or under
the constitution is subject to
the limitations contained
therein. Such that, the Supreme
Court, in Ghana’s case for
example has the jurisdiction to
declare any act or conduct by
any of these arms of government
or constitutional bodies found
to be repugnant or inconsistent
with any provision of the
Constitution as void, ab initio
and a nullity and subject to be
struck down or set aside. This
is the scenario in which the
conduct of the President in
setting up the CRC and the CRIC
must be respectfully considered
in strict terms of my mandate
under the Constitution 1992 and
the judicial oath I ascribed to
upon assumption of office to
uphold and defend the
Constitution.
CONCLUSION
In the premises, there will be
judgment for the plaintiff in
terms of the reliefs which he
claims as follows:-
1. Save that the
President is entitled under
articles 278 (1) (a) of the
Constitution 1992 to appoint
Commission of Inquiry into any
matter of public interest in
which he is satisfied, however
the appointment of the CRC
pursuant to C.I. 64 is null and
void as it contravenes the
letter and spirit of Article 278
(1) (a) of the Constitution
1992, to that extent, relief (1)
is accordingly granted.
2. Flowing from the
grant of relief 1 as stated
above, relief 2 is accordingly
granted.
3. Flowing from relief 1
supra relief 3 is accordingly
granted.
4. In granting relief 4
we are of the view that the CRIC
set up by the President to
finalise amendment bills for
both entrenched and
non-entrenched provisions has no
constitutional basis and offends
the letter and spirit of
Article 289 of the Constitution
and accordingly same is null,
void and of no effect
whatsoever.
5. Relief 5 is
accordingly granted as it flows
from relief 4 supra
6. Save that the
President has a limited
mandatory role granted him in
Articles 290 (b), 291 (4) and
292 (a) and (b) of the
Constitution, relief 6 is
granted.
7. Flowing from the
above, relief 7 is accordingly
granted.
8. Save that the
defendants herein are directed
to stop forthwith all steps that
are being taken towards the
amendment of the Constitution
flowing from the amendment
process embarked upon by the
CRIC the remaining averments in
relief 8 are dismissed.
9. In view of the grant
of relief 8 in terms as stated
above, relief 9 is accordingly
struck out as superfluous.
10. We direct that in view
of the relief granted above
Parliament must assume full
control of the amendment process
flowing from the work or
proposals of CRC.
11. Since it is the
convention that this court does
not grant costs in
constitutional cases, relief 11
is refused.
(SGD) V. J. M.
DOTSE
JUSTICE OF THE SUPREME COURT
ANIN YEBOAH JSC:-
I had the opportunity of reading
the draft opinion of my esteemed
brother Dotse, JSC. I agree
with him that the plaintiff has
made a case for this court to
grant him some of the reliefs as
clearly set out in his
dissenting opinion.
As this court is being called
upon for the first time in the
relatively short period of the
life of the 1992 Constitution to
determine the issues bothering
on the amendments to the
constitution, I have decided to
add a few words in support of
the dissenting pinion of my
brother, moreso, when we are
dissenting from the opinions our
respected colleagues. Secondly
the issues raised are of vital
importance for our democratic
governance.
The reliefs set out are clearly
captured in the dissenting
opinion and it would serve no
useful purpose for same to be
repeated in this delivery. The
facts of this case also appear
not to be in any controversy
whatsoever.
What triggered the commencement
of this action for the reliefs
sought by the plaintiff is that,
the Constitution Review
Commission established by the
President by C.I 64 of 2010 as
Constitution Review Commission
of Inquiry Instrument, was to
usurp powers that the
Constitution has exclusively
vested in the Parliament of
Ghana. This assertion by the
plaintiff is controverted by the
defendant that the mandate given
to the C.R.C did not in any way
usurp the powers of the
Parliament of Ghana.
One cannot answer or resolve
this issue without a careful
study of the terms of reference
of the C.R.C which my brother
Dotse JSC has gone at length to
discuss. I do not think that
any of the parties herein would
quarrel with the power exercised
by the President in the
performance of his
constitutional powers under
Article 278(1) (a). However,
one may ask whether the C.R.C
ought to have been a Commission
of Inquiry envisaged under
Articles 278, 279 and 282 of the
Constitution. From historical
perspective, a Commission of
Inquiry is usually established
to perform functions spelt out
under Article 280 of the
Constitution and make some
findings out of the inquiries.
Our Constitutional law is
replete with several cases
dating back after the end of the
First Republican Constitution of
1960. The only case in which
the nature and scope of the
Commission of Inquiry should
take was the case of: THE
REPUBLIC v CHARLES WEREKU
BROBBEY & or unreported
decision of the High Court in
case № ACC39/2010 dated
10/08/2010 which my brother
Dotse JSC has adequately dealt
with in his delivery.
I am of the opinion that under
Article 280(1) a Commission of
Inquiry should not necessarily
make adverse findings against an
institution or a person who may
be the subject of the inquiry.
The C.R.C to me appears to be
quite different from the
Commission of Inquiry which
under Article 280(2) would vest
some rights in individuals and
institutions to challenge any
adverse findings made against
them in a court of law.
The C.R.C indeed collated
opinions and views from the
public. This could have been
done by a committee set up by
the president not under Article
278. Article 278 when read with
other articles under chapter
twenty-three of the Constitution
vests in a Commission of Inquiry
special powers like a High court
of Justice under Article
280(2). The President, I will
freely concede, has wide powers
to gather public opinion and
views on a particular subject by
resort to several other means
but under Chapter Twenty-three
of the Constitution, a
Commission of Inquiry was not
the appropriate means. The
Constitution has placed
limitations on every individual
and institutions vested with
authority to exercise power
within the constitutional
limits. One great feature about
written constitution such as
ours is the predictability of
it. Executive power and all
other powers are governed by the
constitution and it is within
the scope of those powers that
they operate.
A careful reading of the
Constitution as a whole will
reveal that the Constitution has
placed checks on powers
exercised by the Executive,
Parliament and the Judiciary.
Care must be taken not to expand
the powers so granted to any
organ of State or an institution
when exercising powers under the
Constitution. I agree with the
opinion of SOWAH JSC (as he then
was), when he said in TUFFOUR
v A-G [1980] GLR 637 as
follows:
“The ideals which the framers of
the Constitution were at pains
by the letter and spirit of the
Constitution to establish ought
to be respected and adhered to”
For in as much as one should not
stifle the Constitution as a
‘living organism capable of
growth’, we must guard against
the expansive powers of one of
the most powerful arm of
government when dealing with the
very Constitution from which it
derives its powers. In
AMERICAN COMMUNICATIONS
ASSOCIATION v DOUDS
339 US 382, 439 (1950) Robert H.
Jackson said:
“Our protection against all
kinds of fanatics and
extremists, none of whom can be
trusted with unlimited power
over others, lies not in
their forbearance but in the
imitation of our Constitution”
I do not in my respectful
opinion think that the setting
up of the Constitution Review
Commission under Article 278 of
the Constitution was right for
the reasons I have added in
support of the lead opinion in
dissent offered by my worthy
brother Dotse JSC, and as the
Commission set up does not
satisfy the Constitutional
requirements under Article 278
and 279 they had no mandate to
perform the task under terms of
reference.
Another area which I wish to
express my opinion in support of
the delivery by my brother Dotse
JSC bothers on the role of
Parliament in amending the
Constitution. In the same
constitution fetters are placed
on our Parliament under Article
107 to prevent it from passing
any law to change a decision of
any court and also to pass
retrospective laws. It also has
no power under Article 270(2) to
pass certain laws on
Chieftaincy. However, powers
exclusively vested in Parliament
to amend the constitution is
under Article 289.
The plaintiff, to me, is not
complaining that the President
has no role to play at all in
the amendment of the
Constitution. For it would be
contrary to Article 106 which
makes it clear that the
President must assent to every
bill passed by Parliament. As
my brother Dotse JSC has pointed
out, that “no amendment can be
valid if the President refuses
to assent to a Bill approved by
Parliament”. All amendments to
the constitution are effected
through Acts of Parliament
assented to by the President.
The role of the President in
effecting an amendment to the
provisions of the Constitution,
however, appears to be limited.
The President may through the
Attorney-General introduce a
bill in Parliament as has been
the practice. A careful reading
of the constitution shows that a
bill may even be introduced by
an individual or an institution.
The plaintiff’s complain is that
the President has no power to
set up a Constitution Review
Implementation Committee (CRIC)
and vest it with the mandate to
implement the recommendations of
the Constitution Review
Committee (CRC). Articles
289,290,291 and 282 read
together as the only articles
under chapter Twenty-five which
deal with amendments to either
the entrenched provisions or
non-entrenched provisions
clearly spelt out the powers of
Parliament in the exercise of
constitutional amendments.
It appears that the framers of
the Constitution in preserving
separation of powers in the
constitution has limited the
role of the Executive and indeed
the Judiciary has no role to
play at all in the exercise.
The only role of the Judiciary
is to be called upon to declare
whether an enactment runs
counter to any provisions of the
constitution. Subject to the
very limited role the Presidency
may play in constitutional
amendments, Parliament’s role is
paramount.
My brother Dotse JSC has
extensively considered the
limited role of the President in
effecting amendments to the
Constitution. I do not intend
to repeat the same reasoning on
this mandate of CRIC as
entrusted to them by the
President. The constitution has
not sanctioned this procedure
under any of the articles
referred to above under chapter
twenty-five of the constitution
and any other law for that
matter. As said earlier, a
constitution could not
anticipate every conceivable
matter and therefore gives room
for interpretation that would
meet the test of times. As far
back as 1788 Alexander Hamilton
in a speech in the United State
senates some few years after the
birth of the American
Constitution said as follows:
“Constitutions should consist
only of general provisions; the
reasons is that they must be
permanent and they cannot
calculate for the possible
change of things”
If the constitution has not made
elaborate procedure for its
amendments I would readily
concede the argument advanced by
the Attorney-General in this
case. However, there exist
elaborate and comprehensive
procedures for amending both the
entrenched and non-entrenched
provisions of the Constitution.
It is a fact of Constitutional
history of this 4th
Republic that on 16th
December 1996, Article 8 of the
constitution was repealed and
other articles like articles 9,
112, 114, 166, 19, 201, 206 and
211 were amended by Parliament
after following the strict
procedure laid down in the
constitution. The novelty
procedure which we have been
called upon did not arise for
our attention and consideration
to decide.
Nothing prevented the
Constitution Review Commission
from presenting the views and
opinions of the citizenry to
Parliament to effect the
amendment of the provisions
which called for the amendment.
I agree with my brother Dotse
JSC that the CRIC has no such
role to play in our constitution
when it comes to amendments of
both entrenched and
non-entrenched provisions.
The President in exercising his
executive powers may appoint a
committee or body to push his
agenda forward but in a serious
matter like an amendment of an
entrenched and non-entrenched
provisions of the constitution,
care must be taken not to expand
the powers of the President in a
matter, which to me, should be
the preserve of Parliament under
the Constitution.
With the above reasons, I agree
with my worthy brother in
dissent; and accordingly grant
the reliefs he has also granted.
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
COUNSEL
GODFRED YEBOAH- DAME ESQ. WITH
HIM PROF. KENNETH AGYEMANG
ATTAFUAH ESQ. AND ERIC DELANYO
ALIFO ESQ. FOR THE PLAINTIFF.
SYLVESTER
WILLIAMS ESQ. CHIEF STATE
ATTORNEY FOR THE DEFENDANT.
See
Sarah H. Cleveland,
Powers Inherent in
Sovereignty: Indians,
Aliens, Territories, and
the Nineteenth-Century
Origins of Plenary Power
over Foreign Affairs, 81
Tex. L. Rev. 1, 10
(2002) (tracing plenary
power doctrine to the
1880s).
A
finding of a Commission
of inquiry shall not
have the effect of a
judgment of the High
Court as provided under
Article 280(2); “unless
(a) six months have
passed after the finding
is made and announced to
the public; or (b) the
Government issues a
statement in the Gazette
and in the national
media that it does not
intend to issue a White
Paper on the report of
the Commission whichever
is the earlier”
(Constitution 1992,
Article 280(5)).
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