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J U D G M
E N T
DR DATE-BAH J.S.C.:
[was invited by his Lordship
the Chief Justice to deliver his
opinion first]. This is an
action brought to invoke the
original jurisdiction of the
Supreme Court. It is expressed
by the plaintiff to be pursuant
to articles 2(1)(b) and 60 of
the 1992 Constitution and rule
45 of the Supreme Court Rules,
1996 (CI 16).
The facts
The facts of
the case may briefly be stated
as follows: On 21 February 2002,
the President of the Republic
wrote to the Speaker of
Parliament, informing the
Speaker that the President would
be travelling to Australia to
attend the Commonwealth Heads of
Government Meeting, scheduled to
take place from 2 to 5 March
2002 and that he would be away
from Ghana from 24 February
until 10 March. He further
informed the Speaker that during
that period, because the
Vice-President would also be
absent from the country from the
24 to 27 February, the Speaker
was, pursuant to article 60(11)
of the Constitution, to act as
President for those four days.
Accordingly, on 24 February, the
Speaker swore the Presidential
oath and acted for the President
from the 24 to 27 February.
On 28 February, the plaintiff,
in his capacity as “a concerned,
private Ghanaian citizen, who is
interested in upholding the
respect for, and compliance
with, the Constitution and the
rule of law”, as he declares in
his writ, filed a writ at the
Supreme Court, invoking the
original jurisdiction of the
court and seeking the following
reliefs:
“(1) A
declaration that upon a true and
proper interpretation of article
60(11) of the 1992 Constitution,
the purported swearing-in of the
Speaker of Parliament, the
Right
Honourable Mr Peter Ala Adjetey,
as President of Ghana, on or
about Monday 24 February 2002,
is inconsistent with, or is in
contravention of the said
provision of the Constitution
and is therefore
unconstitutional, void and of no
effect.
(2) A
perpetual injunction to restrain
the Speaker of Parliament, the
Right Honourable Peter Ala
Adjetey, and any other person
succeeding to the Office of
Speaker of Parliament, from
performing the functions of
President of the Republic of
Ghana except in the event of the
President and the Vice-President
being unable to perform the
functions of the President.
(3) Such
other ancillary or consequential
orders or directives as the
court may deem fit to give.”
Article
60(11) of the 1992 Constitution
is in the following terms:
“(11)
Where the President and the
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 or a new
President
assumes office, as the case may
be.”
Other
relevant clauses of article 60,
namely, sub-articles (6),
(8)-(9) and (12) respectively
state as follows:
“(6)
Whenever the President dies,
resigns or is removed from
office, the Vice-President shall
assume office as President for
the unexpired term of office of
the President with effect from
the date of the death,
resignation or removal of the
President."
"(8)
Whenever the President is absent
from Ghana or is for any other
reason unable to perform the
functions of his office, the
Vice-President shall perform the
functions of the President until
the President returns or is able
to perform his functions."
"(9)
The Vice-President shall, before
commencing to perform the
functions of the President under
clause (6) of this article, take
and subscribe the oath set out
in the Second Schedule to this
Constitution in relation to the
office of the President."
"(12)
The Speaker shall, before
commencing to perform the
functions of the President under
clause (11) of this article,
take and subscribe the oath set
out in relation to the office of
President.”
Another
article which is relevant to the
facts of this case is article 59
which provides as follows:
“The
President shall not leave Ghana
without prior notification in
writing, signed by him and
addressed to the Speaker of
Parliament.”
Although this case, at first
sight, appears to require the
interpretation of only a
specific clause in the
Constitution, it in fact
requires an examination of
aspects of the underlying scheme
of the Constitution. Separation
of powers is at the heart of the
1992 Constitution and is a
doctrine which, the plaintiff
contends, has to be taken into
account in interpreting the
relevant provision of the
Constitution.
In interpreting the relevant
text, we need to remind
ourselves that contextual
analysis is crucial to the
interpretation of legal
instruments. An important part
of this contextual analysis is
the determination of the purpose
of the provision under
construction. Modern judicial
technique in the English courts,
for instance, has tended away
from simple literalism towards a
purposive approach to
interpretation. As Lord Diplock
said in Carter v
Bradbeer [1975] 3 All ER 158
at 161:
“If
one looks back to the actual
decisions of this House … over
the last thirty years one cannot
fail to be struck by the
evidence of a trend away from
the purely literal towards the
purposive construction of
statutory provisions.”
Though there are some Ghanaian
cases which appear to lend
support to the literalist
approach to the interpretation
of legal instruments, there are
other cases, on the other hand,
which lend support to the
purposive approach.
Illustrations of the latter
approach include the following
cases.
In Tuffuor v
Attorney-General [1980] GLR
637 at 659-660, Sowah JSC (as he
then was), lent support to
contextual analysis, saying:
“We
start by reminding ourselves of
the major aids to interpretation
bearing in mind the goals that
the Constitution intends to
achieve. Our first duty is to
take the words as they stand and
to give them their true
construction having regard to
the language of the provisions
of the Constitution, always
preferring the natural meaning
of the words involved, but
nonetheless giving the words
their appropriate construction
according to the context…”
Another illustration of a
purposive approach to
interpretation was the judgment
of Acquah JSC (as he then was),
in Yeboah v J H Mensah
[1998-99] SCGLR 492. In
considering whether the proper
forum for the plaintiff’s action
was the High Court or the
Supreme Court, Acquah JSC said
at 545:
“Finally, it must be noted that,
unlike an election petition
which can only be initiated by
specific person within a
specific time limit, an action
for the enforcement of the
provisions of the Constitution
may be initiated by any person
at any time. Neither is it
restricted to specified
persons. Thus if the Supreme
Court’s enforcement jurisdiction
is held to be appropriate in
challenging the validity of a
person’s election to Parliament,
this will imply that a person
from one corner of the country
can resort to enforcement
jurisdiction to challenge the
validity of a person’s election
in another remote corner of the
country. And he can do this
even years after the said
election. No one desires such
an absurd situation. Challenges
to the validity of a person’s
election must be initiated in
time. Hence the wisdom involved
in the provisions of article
99(1)(a) of the 1992
Constitution and Part IV of
PNDCL 284.”
In other words, my learned and
respected brother and current
Chief Justice took account of
the purpose of the provision
under consideration in order to
determine what meaning to put on
it.
The final illustration which I
wish to cite is provided in
Benneh v The Republic
[1974] 2 GLR 47. In this case,
Apaloo JA (as he then was), in
delivering the judgment of the
full bench of the Court of
Appeal, applied a purposive
approach to the construction of
the constitutional and statutory
provisions in issue in the
case. The plaintiff, who had
been found by a commission of
inquiry to have illegally
acquired certain assets, brought
an action in the High Court to
restrain the defendants from
carrying out the provisions of
the National Liberation Council
(Investigation and Forfeiture of
Assets) (Further Implementation
of Commissions, Findings (No 3)
Decree, 1969 (NLCD 400). He
submitted that the Decree was
repugnant to certain provisions
in the 1969 Constitution and
therefore void. The High Court
declined jurisdiction and an
appeal from this decision to the
Court of Appeal was dismissed.
In May 1971, the plaintiff
appealed to the Supreme Court.
On 13 September 1972, however,
the Supreme Court was abolished
and the full bench of the Court
of Appeal given jurisdiction to
hear and determine appeals that
had been duly filed with the
former Supreme Court. When the
full bench invited arguments
from the parties on whether NLCD
400 was valid, the defendants
challenged the jurisdiction of
the court. In construing the
relevant constitutional and
statutory provisions, whose
details need not be specified
here, Apaloo JA endeavoured to
identify their legislative
purpose and then proceeded to
construe the provisions in the
light of this legislative
purpose. He said at 80-81:
“While we acknowledge that Dr.
Asante’s construction is a
possible one, we think it is
technical and narrow and does
not reflect the true policy
reasons underlying the
conferment of the appellate
jurisdiction of the erstwhile
Supreme Court in this court. In
its policy declaration
abolishing the Supreme Court,
the government in a statement
issued on its behalf by the
Information Services Department
on 12 September 1972 said:
“The
National Redemption Council
proposes to put into force the
necessary legislation to protect
the interest of those whose
appeals are pending before the
Supreme Court, and to transfer
the jurisdiction of the Supreme
Court in chieftaincy matters to
the Court of Appeal which will
now be the final appellate court
in the country.”
That
legislation was promulgated and
became law the very next day.
One of the persons whose
interest that legislation seeks
to protect, is the plaintiff...
We think we ought to construe
section 3(2)(d) of NLCD
101 liberally and benevolently
to carry out the declared
intention of the law-giver. The
construction put on that section
by the Solicitor-General cannot
but frustrate the true intention
of the legislature and we could
not accept it.”
Of course, these illustrative
cases are not to be regarded as
binding precedents on the
subject of interpretative
approach. “Rules” of
interpretation are not to be
understood as binding courts in
the same way as the ratio
decidendi of a case is
binding on subsequent courts.
The so-called “rules” of
interpretation are merely guides
or aids to judges in deciphering
the meaning of words they are
required to interpret. As Lord
Reid said in Maunsell v
Olins [1975]1 All ER 16 at
18, HL:
“They
are not rules in the ordinary
sense of having some binding
force. They are our servants,
not our masters. They are aids
to construction: presumptions or
pointers. Not infrequently one
“rule” points in one direction,
another in a different
direction. In each case we must
look at all relevant
circumstances and decide as a
matter of judgment what weight
to be attached to any particular
'rule'.”
This is a helpful dictum
reminding us that the task of
interpretation is always
complex, usually involving the
balancing of competing
interests, and the “rules” of
interpretation, whether the
“literal rule”, “the golden
rule”, “the mischief rule” or
the “purposive approach”, are to
be applied in the context of
particular enactment in order to
achieve justice.
What I have stated above has
been merely to emphasise that I
consider the purposive approach
to be more likely to achieve the
ends of justice in most cases.
It is a flexible approach which
enables the judge to determine
the meaning of a provision,
taking into account the actual
text of the provision and the
broader legislative policy
underpinnings and purpose of the
text. Judicial interpretation
should never be mechanical. As
Donaldson J (as he then was),
said in Corocraft Ltd v
Pan American Inc [1969]
1 QB 622 at 638:
“The
duty of the courts is to
ascertain and give effect to the
will of Parliament as expressed
in its enactment. In the
performance of this duty the
judges do not act as computers
into which are fed the statutes
and the rules for the
construction of statutes and
from whom issue forth the
mathematically correct answer.
The interpretation of statutes
is a craft as much as a science
and the judges, as craftsmen,
select and apply the appropriate
rules as the tools of their
trade. They are not
legislators, but finishers,
refiners and polishers of
legislation which comes to them
in a state requiring varying
degrees of further processing.”
As
Justice Aharon Barak, President
of the Supreme Court of Israel,
has said, extrajudicially:
“…the
aim of interpretation in law is
to realize the purpose of the
law; the aim in interpreting a
legal text (such as a
constitution or a statute) is to
realize the purpose for which
the text was designed. Law is
thus a tool designed to realize
a social goal.”
(See Barak, “A Judge on Judging:
The Role of a Supreme Court in a
Democracy” (2002) 116 Harv. L R
19 at p 66). His remarks point
to his support for a purposive
approach to the interpretation
of legal texts, on which he
proceeds to elaborate. He
points out that in carrying out
a purposive interpretation of a
constitution or a statute, it is
necessary to distinguish between
its subjective and objective
purposes.
The subjective purpose of a
constitution or statute is the
actual intent that the authors
of it, namely, the framers of
the constitution or the
legislature, respectively, had
at the time of the making of the
constitution or the statute. On
the other hand, the objective
purpose is not what the author
actually intended but rather
what a hypothetical reasonable
author would have intended,
given the context of the
underlying legal system, history
and values, etc of the society
for which he is making law.
This objective purpose will thus
usually be interpreted to
include the realisation, through
the given legal text, of the
fundamental or core values of
the legal system.
A poignant illustration of
objective purpose is to be found
in the Australian case of
Theophenous v Herald
Weekly Time Ltd (1994) 182
CLR 104. In this case, the High
Court of Australia was faced
with the issue of whether the
court could construe an implied
Bill of Rights into the
Australian Constitution, the
Constitution being silent on a
Bill of Rights. Was the
intention of the original
framers of the Australian
Constitution to be conclusive on
the determination of this issue?
Justice Deane observed in this
case at p 106 that:
“The
present legitimacy of the
Constitution as the compact and
highest law of our nation lies
exclusively in the original
adoption (by referenda) and
subsequent maintenance (by
acquiescence) of its provisions
by the people. While they
remain unaltered, it is the duty
of the courts to observe and
apply those provisions,
including the implications which
are legitimately to be drawn
from their express terms or from
the fundamental doctrines which
they incorporate and implement.
There is absolutely nothing in
the provisions of the
Constitution which suggests an
intention on the part of the
people either that the ordinary
rules of construction should be
ignored or that the failure to
include a detailed list of their
constitutional “rights” should
be treated as somehow precluding
or impeding the implication of
rights, privileges and immunity
from either the Constitution’s
express terms or the fundamental
doctrines upon which it was
structured and which it
incorporated as part of its very
fabric. That being so, even if
it could be established that it
was the unexpressed intention of
the framers of the Constitution
that the failure to follow the
United States model should
preclude or impede the
implication of constitutional
rights, their intention in that
regard would be simply
irrelevant to the construction
of provisions whose legitimacy
lay in their acceptance by the
people. Moreover, to construe
the Constitution on the basis
that the dead hands of those who
framed it reached from their
graves to negate or constrict
the natural implications of its
express provisions or
fundamental doctrines would
deprive what was intended to be
a living instrument of its
vitality and adaptability to
serve succeeding generations.”
In the context of the Ghanaian
Legal System, the core values
from which could be distilled
the objective purpose of
constitutional provisions would
include the provisions of
chapters five and six of the
Constitution and core doctrines
such as the doctrine of the
separation of powers. In this
connection, I would like to
refer to the dictum of Sowah JSC
(as he then was) in Tuffuor
v Attorney-General
[1980] GLR 637, which is
frequently referred to and is in
this case relied on by both the
plaintiff and the defendant. He
said at 647:
“The
Constitution has its letter of
the law. Equally, the
Constitution has its spirit...
Its language, therefore, must be
considered as if it were a
living organism capable of
growth and development. Indeed,
it is a living organism capable
of growth and development. A
broad and liberal spirit is
required for its
interpretation. It does not
admit of a narrow
interpretation. A doctrinaire
approach to interpretation would
not do. We must take account of
its principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time.”
The “spirit”
to which Sowah JSC refers is
another way of describing the
unspoken core underlying values
and principles of the
Constitution. Justice Sowah
enjoins us to have recourse to
this “spirit” or underlying
values in sustaining the
Constitution as a living
organism.
The distinction between
subjective and objective
purposes of a legal text can be
significant. An emphasis on the
objective purpose may be
important in order to respond to
social and other change. At the
same time, authorial intent
(subjective purpose) cannot be
ignored. The interplay between
subjective and objective
purposes, therefore, has an
important influence on a judge’s
approach to constitutional and
statutory interpretation.
The leading English textbook on
statutory interpretation,
Bennion, Statutory
Interpretation (4th ed 2002)
at page 810, regards purposive
interpretation as a modern
version of what used to be
called the mischief rule. The
author expresses the nature of
purposive construction thus
(ibid):
“A
purposive construction of an
enactment is one which gives
effect to the legislative
purpose by-
(a)
following the literal meaning of
the enactment where that meaning
is in accordance with the
legislative purpose (in this
Code called
purposive-and-literal
construction), or
(b)
applying a strained meaning
where the literal meaning is not
in accordance with the
legislative purpose (in this
Code called a
purposive-and-strained
construction).”
Thus, in
applying the purposive approach,
a court may give an ordinary or
artificial meaning to words in a
statute or constitution,
depending upon its perception of
the legislative purpose of the
provision.
To discover the subjective
purpose of the provisions to be
construed in this case, the
primary source of information is
probably the Report of the
Committee of Experts
(Constitution) on Proposals for
a Draft Constitution of Ghana
(presented to the PNDC on 31
July 1991). By analogy to
section 19 of the Interpretation
Act, 1960 (CA 4), which deals
with the use of publications in
the construction of enactment,
this Report, which was
laid before the Consultative
Assembly and which drew up the
1992 Constitution, may be
regarded as serving a purpose
similar to papers laid before
Parliament in relation to a Bill
for enactment. Section 19 (1)
of CA 4 is in the following
terms:
“19.
(1) For the purpose of
ascertaining the mischief and
defect which an enactment was
made to cure and as an aid to
the construction of the
enactment a court may have
regard to any text-book or other
work of reference, to the report
of any commission of inquiry
into the state of the law, to
any memorandum published by
authority in reference to the
enactment or to the Bill for the
enactment and to any papers laid
before the National Assembly in
reference to it, but not to the
debates in the Assembly.”
Thus, section 19 of the
Interpretation Act, 1960
excludes debates in Parliament
from being used as an aid to
construction and, by analogy, I
consider that the actual debates
in the Consultative Assembly
should be excluded. This
exclusion of “debates in the
Assembly” means that Ghanaian
law retains the traditional
exclusionary rule of English
law, in contradistinction to the
view adopted by the House of
Lords in the English case of`Pepper
v Hart [1993] 1 All E
R 42, which allowed recourse to
parliamentary material within
certain defined limits.
The Report of the Committee
of Experts does not throw
much light directly on the
provisions under consideration.
However, the following
statement of its approach is
significant to the search for
the meaning of the provisions
under consideration in this
case. Paragraph 3 of the
Report states that:
“The
Committee operated on the
cardinal principle that we
should not re-invent the wheel.
Accordingly wherever we found
previous constitutional
arrangements appropriate, we
built on them. In this
connection, with appropriate
modifications, we relied
substantially on some of the
provisions of the 1969 and 1979
Constitutions of Ghana to the
extent that they are relevant to
the general constitutional
structure proposed in this
report.”
Accordingly, it is relevant to
compare the relevant provisions
in the 1969 and 1979
Constitutions with the
provisions in the 1992
Constitution to see whether they
assist in the interpretation of
the current provisions.
Under the 1969 Constitution,
there was no Vice-President and
therefore the relevant provision
on the performance of the
President’s functions during his
absence from Ghana resorts to
the Speaker. Article 38(2) and
(3) provides as follows:
“38(2) The President shall not
leave Ghana without the consent
of the Cabinet.
(3)
Whenever the President dies,
resigns, is removed from office
or is absent from Ghana or is by
reason of illness unable to
perform the functions of his
office, the Speaker of the
National Assembly shall perform
those functions until the
assumption of office of the
President or the President is
able to perform those
functions.”
It is thus quite clear from the
language in this provision, ie
article 38(2) and (3) of the
1969 Constitution, that when the
President is absent from Ghana,
the Speaker is to perform the
functions of his office. It is
to be noted, however, that under
the 1969 Constitution the
President was bound to act in
accordance with the advice of
the Cabinet and therefore real
executive power was wielded by
the Cabinet and not by the
President. Nevertheless, the
provision may be regarded as
possibly the origin of the
practice or convention, if there
is such, whereby the Speaker may
be expected to act for the
President when absent from
Ghana.
The comparable provisions in the
1979 Constitution are in
articles 46 and 47(6)-(8) and
(10)-(11) and are in the
following terms:
“46.
The President shall not leave
Ghana without prior notification
issued under his hand and
addressed to the Speaker of
Parliament.
47(6)
Whenever the President dies,
resigns or is removed from
office, the Vice-President shall
assume office as President for
the unexpired term of office of
the President with effect from
the date of the death,
resignation or removal of the
President.
(7)
Whenever the President is absent
from Ghana or is for any other
reason unable to perform the
functions of his office the
Vice-President shall perform the
functions of the President until
the President is able to perform
his functions.
(8)
The Vice-President shall, before
commencing to perform the
functions of the President under
the provisions of clause (6) of
this article, take and subscribe
the oath in relation thereto set
out in the Second Schedule to
this Constitution.
(10)
Where the President and the
Vice-President are both unable
to perform the functions of the
President the Speaker of
Parliament shall perform those
functions until the President or
Vice-President is able to
perform those functions or a new
President assumes office, as the
case may be.
(11)
The Speaker shall, before
commencing to perform the
functions of the President under
the provisions of clause (10) of
this article, take and subscribe
the oath of office in relation
thereto.”
It is obvious that articles 59
and 60 of the 1992 Constitution
are based on these provisions of
the 1979 Constitution with which
they are largely in pari
materia .
What assistance to the
construction of the current
provisions is to be gained from
these earlier provisions?
Article 47(7) of the 1979
Constitution provides stronger
evidence, than the current
provision, that absence from
Ghana is regarded by the
drafters of the Constitution as
constituting inability to
perform the functions of the
President. For, whereas the
current article 60(8) speaks in
terms of the Vice-President
performing the functions of the
President, “whenever the
President is absent from Ghana
or is for any other reason
unable to perform the functions
of his office” “until the
President returns (my
emphasis) or is able to perform
his functions”, the 1979
provision lumps the two
situations into one, providing
that the Vice-President is to
perform the functions “until the
President is able to perform his
functions.” The 1979 provision
is thus a stronger statement
that absence from Ghana is a
subset of inability to exercise
the functions of the President.
Is the change in language in the
1992 Constitution to be regarded
as a clarification or a change
in policy? Given the
declaration by the Committee of
Experts referred to above, it is
more likely to have been a
clarification than a change in
policy. In other words, it would
seem that the drafters of the
Constitutions of Ghana since
1969 have taken the view that
the absence of a President from
Ghana renders him unable to
perform the functions of his
office. Accordingly, the
Vice-President, or in his
absence, the Speaker, is to
exercise his functions whilst he
is thus disabled. The
plaintiff’s challenge would
appear to be to the wisdom of
this position. The plaintiff
asserts in paragraph (5) of his
arguments of law that:
“Accordingly, it cannot be said
that when the President has
merely travelled abroad,
particularly when he is on
official duties as Head of State
and Head of Government, he is
“unable” to act as President.
Indeed, the President travelled
to Singapore to meet his
counterpart, the Head of State
and Head of Government of
Singapore; and he proceeded
further to Australia to attend a
summit conference of
Commonwealth Heads of States and
Governments. In this light,
when the President travelled
abroad, he was not unable to
perform his duties as President.
He was indeed performing his
duties as President.”
In effect, the plaintiff is
raising issues as to the
objective purpose of the
provisions under consideration.
Quite apart from what the
framers of the Constitution
actually intended (subjective
purpose), what should a prudent
or reasonable framer of the
Constitution have provided for
on this issue? The answer to
this question has to be
formulated by reference to the
fundamental or core values and
the underlying scheme of the
1992 Constitution. In effect,
the plaintiff is arguing that a
hypothetical reasonable drafter
of the Constitution would not
have intended to include absence
of the President from the
jurisdiction as one of the
situations authorising the
Speaker to act for him since to
do so would have adverse
repercussions on the underlying
scheme of the Constitution.
Accordingly, article 60(11)
should be construed so as to
conform with this objective
purpose. Is this argument
sustainable?
There is a school of
constitutional thought which
denies that subjective purpose
has controlling precedence. In
other words, the fact that the
actual intention of the framers
of the Constitution can be
determined does not
automatically resolve issues as
to interpretation since it may
be that an interpretation based
on the objective purpose or the
core values embedded in the
legal system in question may be
a more appropriate or just
result. The extrajudicial
recommendation of Justice Aharon
Barak in his Harvard Law Review
article referred to above is:
“…one should take both the
subjective and objective
elements into account when
determining the purpose of the
constitution. The original
intent of the framers at the
time of drafting is important.
One cannot understand the
present without understanding
the past. The framers’ intent
lends historical depth to
understanding the text in a way
that honours the past. The
intent of the constitutional
authors, however, exists
alongside the fundamental views
and values of modern society at
the time of interpretation. The
constitution is intended to
solve the problems of the
contemporary person, to protect
his or her freedom. It must
contend with his or her needs.
Therefore, in determining the
constitution’s purpose through
interpretation, one must also
take into account the values and
principles that prevail at the
time of interpretation, seeking
synthesis and harmony between
past intention and present
principle.”
(See Barak, “A Judge on
Judging: The Role of a Supreme
Court in a Democracy” (2002) 116
Harv L R 19 at p 69). I agree
with this recommendation to
balance the subjective and
objective purposes of
constitutional provisions in
order to arrive at an
appropriate interpretation.
This implies that the arguments
of the plaintiff, which question
the correctness of the
interpretation I have spelt out
above, which I consider probably
flows from the actual intent of
the framers of the Constitution,
deserve careful consideration.
The plaintiff, in effect, argues
that the doctrine of separation
of powers is a core concept in
the current constitutional
arrangement in Ghana and
therefore in determining the
objective purpose of article
60(11) this fact should be taken
into account and care taken not
to undermine the doctrine. In
paragraph (28) of the
plaintiff’s arguments of law, he
states:
“The
doctrine of separation or (sic)
powers is fundamental in
constitutional law. It is
conceded that the three organs
of government – Judiciary,
Legislature and Executive – do
not exist in water-tight
compartments and that there is
some contact between them and
some checks and balances.
Nevertheless, it is submitted
that an interpretation ought to
be placed on article 60(11) so
that it does not occur so
readily and so easily for one
organic head (in this case the
Speaker of Parliament) to
assume, succeed to and perform
the whole functions of another
organic head (in this case the
Executive President) merely on
the temporary, official travel
of the President and the
Vice-President. It is submitted
that to do otherwise will
undermine the doctrine of
separation of powers.
Montesquieu,
The Spirit of Laws (1748)
Appadorai,
AA, The Substance of Politics
(Oxford: OUP, 1975) pp
516-522
Harvey and
Barther, The British
Constitution (London:
Macmillan, 1977) pp 391-39."
The argument, then, is that
given the need to sustain the
core concept of separation of
powers, a narrow interpretation
should be placed on the words
“unable to perform the
functions” of the President in
article 60(11), restricting it
to situations of real inability
to perform the functions such as
“grave or terminal illness
affecting physical or mental
capacity, kidnapping,
absconding, missing – but under
no circumstance, in any event,
can the phrase “unable to
perform the duties of the
President” be interpreted to
include the temporary travel of
the President to meet with other
Heads of State and Government.”
(See paragraph (22) of the
plaintiff’s arguments of law).
In theory, there is much
persuasive force in the
plaintiff’s contention that
merely because the President is
away from Ghana does not
necessarily mean that he is
unable to perform the functions
of his office, particularly, in
the light of modern
technological developments in
the area of telecommunications
and also because of his
authority to delegate power to
appropriate subordinates. In
practice, however, this
argument, raises the empirical
question whether, given the
circumstances of contemporary
Ghana and the means of secure
communication available to the
President when abroad, it is
realistic to expect the
President to exercise his
executive authority from
abroad. Neither party provided
any evidence on this issue. The
court, therefore, has not
received any assistance on this
score. The express provision of
the 1969 Constitution which, in
my view, is the ultimate origin
of the current article 60(11) of
the 1992 Constitution, carries
with it the implication, to my
mind, that given the means of
communication available to a
Ghanaian President when
travelling abroad, it is
impractical to expect the
President to remain fully in
charge of the executive branch
of government. The issue
arising therefore is whether
this judgment of the framers of
the recent constitutions of
Ghana remains valid. No
evidence was made available to
this court to rebut this
judgment of the framers.
Some thorny issues arise from
holding that the Speaker may
carry out the functions of the
President whilst he is abroad.
If the Speaker is exercising the
functions of the President
pursuant to article 60(11), does
this imply that the President no
longer has executive authority
whilst travelling abroad? Can
he not execute agreements and
other documents on behalf of the
Republic? Would he need
authorisation from the Speaker
to act on behalf of the
Republic? If the answer to
these questions were that the
President no longer had
authority to act on behalf of
the Republic, would this not fly
in the face of the expectation
of ordinary Ghanaians? If, on
the other hand, the President
whilst abroad retains the
authority to carry out at least
some of his functions, how are
the respective roles of the
President and the Acting
President to
be
co-ordinated and reconciled?
These are all questions which
were raised by the express
provision in the 1969
Constitution which has been
referred to above (article 38)
and yet it provided no answers
to them. Given the absence of
express provision in article
60(11), should it be so
construed as to obviate the need
to address these questions, in
spite of the previous
constitutional history on the
matter?
Are the various issues raised
above of sufficient weight to
counterbalance my reading of the
framers’ intent and to require
this court to interpret article
60(11) in the way that the
plaintiff would like us to?
Does the systemic coherence of
the 1992 Constitution and the
need to shore up its underlying
principle of separation of
powers require that the Speaker
is able to act for the President
only when the latter is
incapacitated from performing
his functions, as opposed to
being merely absent from the
jurisdiction? Would there be
such mischief in following the
framers’ apparent intent that
the narrow interpretation
insisted on by the plaintiff
would be justified in the larger
interest of the integrity of the
constitutional order established
by the Constitution?
My assessment is that the
alleged mischief is not so great
as to require departing from my
interpretation of the framers’
intent. The period during which
the Speaker will ordinarily be
required to act for the
President will be short. In
this present case, it was for
only four days. Accordingly,
such short periods of the
executive power being exercised
by the presiding officer of the
legislature are unlikely to
impair the long-term underlying
balance of the Constitution.
Moreover, in spite of the
headship of the executive and
the legislature devolving on
one person, the
legislature, as an institution,
and the executive, as an
institution, will each maintain
their distinct and separate
zones of authority. In this
regard, it would be desirable
for a convention or practice to
be observed whereby when the
Speaker is performing the
functions of President, he does
not at the same time exercise
the powers of the Speaker and he
devolves his presiding and other
roles to a deputy.
The open questions posed above
relating to whether the
President continues to share the
executive power while the
Speaker is acting for him, and
if so the extent of the sharing
of the power, do not need to be
answered in this case. They
should be reserved for future
cases whose decision requires
the determination of those
questions. In the meantime,
Parliament, suo motu, or
at the instigation of the
Executive, would do well to
address these questions and
enact appropriate gap-filling
legislation.
I should mention that although I
have expressed the conflicting
interpretations of the plaintiff
and the defendant as
representing a tension between
the subjective and objective
purposes of article 60(11), this
is not necessarily how the
plaintiff himself sees it.
Rather, this represents my
interpretation of the
plaintiff’s case. Indeed, the
plaintiff himself, in one part
of his argument, purports to
frame his contention on the
basis of a “literalist”
interpretation of the provision
under construction. He says in
paragraphs (3)-(4) of his
arguments of law:
“(3)
The cardinal rule of
interpretation of constitutions,
statutes and deeds is that words
must be given their ordinary,
clear, unambiguous, unequivocal
and everyday meaning, without
any glosses, additions or
interpolations:
Attorney-General v Tagoe
[1984-6] GLRD 88, SC;
Tuffour v
Attorney-General [1981] GLR
944, SC and Sallah v
Attorney-General [1970] CC
55,CA sitting as SC.
(4)
The dictionary meaning of
“unable” is “not able to,”
“incapable of ,” “not in a
position to” And “able” means
the power, privilege or
opportunity to do something:
Black’s Law Dictionary Oxford
Advanced Learner’s Dictionary of
Current English.”
From what I have said above
regarding purposive
interpretation, it is clear that
I do not find this kind of
linguistic argumentation
persuasive. What interpretation
is to be given the words should
depend upon the court’s
perception of the purpose of the
provision and the context of the
words, rather than on their
dictionary meaning. The “plain
meaning” approach to judicial
interpretation is not
necessarily the most apposite.
In my view, words hardly ever
have a meaning in vacuo.
Words take on meaning in
association with the other words
in whose context they are used.
Therefore the interpretation of
words almost invariably means
doing more than finding their
mere dictionary (or “literal” or
“plain”) meaning.
My conclusion is that the
purposive interpretation to be
given to article 60(11) is that
where both the President and the
Vice-President are absent from
Ghana, they are to be regarded
as "unable to perform the
functions of the President" and
thus the Speaker is obliged to
perform those functions. On the
facts of this case, it is
unnecessary to decide whether
the Speaker, when acting for the
President, is vested with all
the President’s functions or
only those which cannot be
effectively performed whilst the
President is absent from Ghana.
In my view, the purpose of the
framers of the Constitution was
to ensure that whoever exercises
the functions of the President
is physically present in Ghana.
This has to do with the framers’
assessment of the empirical
conditions in Ghana and the
efficacy with which executive
power may be exercised in Ghana
from abroad. There are
insufficient counterbalancing
considerations from the core
values and underlying scheme of
the Constitution to justify
interpreting the words of
article 60(11) in a way which
overrides this framers’
purpose. The framers’
assumption that the President
or, in his absence the
Vice-President, needs to be
present in Ghana in order to
perform the functions of the
President effectively has not
been rebutted.
Accordingly,
I would dismiss this action.
DR. S. K. DATE-BAH
JUSTICE OF
THE SUPREME COURT
ACQUAH
C.J. I agree
and I have nothing to add.
G. K. ACQUAH
CHIEF JUSTICE
BADDOO
J.S.C. I also
agree.
S. G. BADDOO
JUSTICE OF THE SUPREME COURT
DR.
TWUM J.S.C. I also
agree.
DR. S. TWUM
. JUSTICE
OF THE SUPREME COURT
PROF KLUDZE JS.C.
My Lords, the plaintiff is
asking us to make an order that,
upon a true and proper
construction of article 60 of
the 1992 Constitution, when the
President is absent from Ghana,
the Vice-President or the
Speaker of Parliament may not be
sworn in as acting President.
The first relief of the writ is
confined to seeking to restrain
the Speaker of Parliament from
performing the functions of the
President when the latter is
absent from Ghana. However, the
arguments presented on behalf of
the plaintiff indicate that the
restraint is intended to extend
also to the Vice-President. A
gravamen of the plaintiff's
contention is that the
President, notwithstanding the
language of article 60(11), is
not unable to perform his
functions merely by reason of
his absence from Ghana. If we
accede to this contention and
agree with the plaintiff that
the President is not unable to
perform the functions of his
high office when absent from
Ghana, it would be as
unconstitutional for the
Vice-President also to perform
those functions during the
absence of the President, as it
would be for the Speaker of
Parliament to perform them.
The plaintiff's
argument is a two-pronged attack
on the procedure which had
hitherto been followed. The
first argument is that, when the
President is out of Ghana, he is
not by reason of that fact alone
unable to perform the
functions of his office. Indeed,
he contends that when the
President travels out of the
country on official duties, he
is very much an active President
discharging his duties. If that
is the case, the absence of the
President from Ghana is not a
sufficient reason to trigger the
provisions of article 60 of the
Constitution for swearing in an
acting President.
The second argument of the
plaintiff is that we create a
situation of possible conflict
and confusion when we have a
President performing his
functions out of Ghana while
there is an acting President
discharging some of those
functions within Ghana. This
position of dual presidency, he
argues, is not what the framers
of the Constitution envisaged in
article 60(11) of the
Constitution.
The initial impression, upon
reading the plaintiff's
petition, is that he raises an
interpretational issue as to the
true meaning of the phrase
"unable to perform the functions
of his office" within the
intendment of article 60(8) and
(11) of the 1992 Constitution.
That is the aspect which my
learned brother Dr Date-Bah JSC,
has very effectively analysed
and explained. I
agree with all that Dr Date-Bah
JSC has said and have very
little to add to his brilliant
exposition. I agree that we must
adopt a purposive construction
of the constitutional
provisions. That means that we
do not construe words in the
abstract but within the context
in which they are used. Language
is a tool for expressing the
wishes of the speaker, author or
writer. Therefore, regardless of
the theoretical classification
of the methodology of
construction, the fundamental
rule is for the court to
construe every enactment with
the purpose of effectuating the
true intent of the lawmaker, in
this case the intent of the
framers of the 1992
Constitution. All other canons
of construction have the
ultimate purpose of achieving
this goal. I do not think that
mere recourse to dictionaries of
the English language will
resolve the issues which
confront us or render any easier
the task we are called upon to
perform. Our task here is not to
try to explain what "unable to
perform the functions of his
office" means. We understand the
word "unable" and a reference to
an English dictionary for that
purpose is hardly useful. What
we are called upon to say is
whether, when the President is
absent from Ghana on official
duties, he can for that reason
alone be said to be "unable to
perform the functions of his
office." The Constitution spares
us that ugly task. Otherwise,
every time that the President
travels out of Ghana, a ruling
would be necessary from us as to
whether the circumstances of his
absence are such that the
President is "unable to perform
the functions of his office," so
that either the Vice-President
or the Speaker of Parliament may
temporarily perform his
functions. It is not our proper
function to determine whether
the President or Vice-President
is "unable" to perform the
functions of the President when
the President is out of Ghana.
That has been clearly stated in
the Constitution itself and, in
my opinion, it does not lend
itself to a serious debate.
One of the canons of
construction is expressum
facit cessare tacitum. It
means that "when a thing is
expressly stated, it ends
speculation as to whether
something 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. Therefore, even if we
adopt the so-called literal
interpretation, or the purposive
construction which is otherwise
known as the "mischief rule",
the result is the same. A
literal reading of article 60
enjoins us to say, by virtue of
its clause (8), that the
President is "unable to perform
the functions of his office"
when he is for any reason
whatsoever absent from Ghana.
This includes absence from Ghana
on official duties. A purposive
approach also confirms the same
result, because it is patently
the intent of the framers of the
Constitution that the functions
of the President be not thrown
into abeyance while he is absent
from Ghana for whatever reason.
The executive arm of government
must continue to function even
when the President has travelled
outside Ghana, even on official
duties.
My Lords, the Constitution
offers its own meaning for the
phrase "unable to perform the
functions of his office." In
article 60(8) of the
Constitution, the words are
that:
"Whenever the
President is absent from Ghana
or is for any other reason
unable to perform the functions
of his office, the
Vice-President shall perform the
functions of the President
until the President returns or
is able to perform his
functions." (The emphasis is
mine.)
It is obvious to me that the
Constitution in so many words
declares that the absence of the
President from Ghana is one of
the possible circumstances in
which he becomes "unable" to
discharge the functions of his
high office. The words of the
Constitution show that there may
be other reasons, apart from
absence from Ghana, when the
President may be unable to
perform his functions. That does
not directly concern us here. It
is not clear whether the
President is unable to perform
the functions of his office when
he has a bad cold; or when he
suffers a heart attack; or when
he has diarrhoea. Whether the
President has to be in a coma or
an intensive care unit of a
hospital, or under the care of a
native herbalist, before we can
say that he is unable to perform
the functions of
his office, is a question we are
not to address this time. We
only know from the words of
article 60(8) that absence from
Ghana is one of the stipulated
circumstances which the
Constitution presumes to mean
that the President is unable to
perform the functions of his
office. The other
reasons are not articulated, nor
instances given of them.
However, the choice of
phraseology in article 60(8) by
the framers of the Constitution
means that "Whenever the
President is absent from Ghana"
must be construed ejusdem
generis with "for any other
reason unable to perform the
functions of his office." The
framers of the Constitution
could have written words like:
"Whenever the President is
absent from Ghana or is unable
to perform the functions of his
office..." In that case, "absent
from Ghana" could be construed
disjunctively as an alternative
to inability to perform his
functions. That is not the
language employed by the writers
of the Constitution. The words
of the Constitution make it
clear that "unable to perform
the functions of his office" is
a genus of which "absent from
Ghana" is one of the species or
sub-sets. Where the Constitution
makes the position so
explicitly, we do not have to
speculate as to the meaning of
"absent from Ghana" in the
context of the President's
inability to perform his
functions. We can argue about
how ill the President may be
before it can be said that he is
unable to perform the functions
of his office. But we cannot
seriously argue about whether he
is unable to perform the
functions of his office when he
is "absent from Ghana", because
the Constitution says so plainly
in clause (8) of article 60.
An enactment, including a
Constitution, may itself be the
best source for the
interpretation of otherwise
obscure words and expressions.
Where the enactment gives a
meaning to a word or phrase in
another section, we may refer to
that section to construe the
word or phrase when it occurs
again in the same context
elsewhere in the enactment. In
the present case, the expression
"unable to perform the functions
of his office" occurs in the
same article, that is article 60
of the Constitution dealing with
the temporary devolution of the
President's functions. In
my opinion, the
phrase "absent from Ghana", used
ejusdem generis with "for
any other reason unable to
perform the functions of his
office" in clause (8) of article
60, must be understood to mean
the same thing in clause (11) of
the same article. The expression
"absent from Ghana" is used in
the same context and in the same
article of the Constitution. It
must bear the same meaning as
one of the reasons why the
President may be considered
unable to perform the functions
of his office, so as to mandate
the devolution of his functions
under clauses (8) and (11) of
article 60.
Using the meaning of the phrase
in the same article to interpret
it in another part makes for
internal consistency and
coherence of different but
related provisions of the
Constitution. In this particular
case, article 60(8) indisputably
says that the Vice-President
shall perform
the functions
of the President "Whenever the
President is absent from Ghana
or is for any other reason
unable to perform the functions
of his office." In article
60(11) which relates to the
Speaker of Parliament, the
provision is for the Speaker to
act for the President "Where
the
President and the Vice-President
are both unable to perform the
functions of the President..."
Unless we interpret "unable to
perform the functions of the
President" in article 60(11) by
accepting absence from Ghana as
one of the reasons for the
inability, as in article 60(8),
we may be faced with an
absurdity. It will mean that
while under article 60(8) the
Vice-President may act for the
President if the President is
absent from Ghana and thus
constitutionally presumed to be
unable to discharge presidential
functions, there will be no
person in Ghana to perform the
functions of the President if
both he and the Vice-President
are absent from Ghana. This will
produce internal inconsistency
and absurdity, quite apart from
the predictable constitutional
crisis that such a construction
may portend. I cannot believe
that the framers of the
Constitution
intended this consequence.
Instead, I am of the firm
opinion that the framers of the
Constitution intended that the
factors which render the
President unable to perform the
functions of his office, as
articulated in clause (8) of
article 60, are intended to
apply also to both the President
and the Vice-President under
clause (11) of the same article.
These factors are in clause (8)
and include absence from Ghana
and "any other reason." The
other reasons are not stated;
but absence from Ghana is
expressly stated as one of the
reasons why the President is
unable to perform the functions
of his office. This does not
properly belong to the realm of
speculation or disputation. A
political scientist may question
the wisdom of the constitutional
arrangement; but that form of
criticism falls outside our
interpretative function when the
constitutional provision
is devoid of
ambiguity.
In Tuffuor v
Attorney-General [1980] GLR
637, the constructional issue
faced by the Court of Appeal,
sitting as the Supreme Court,
was not very different from the
present case. In that case, the
plaintiff averred that the
Honourable Mr Justice F K
Apaloo, who had been Chief
Justice immediately before the
coming into force of the 1979
Constitution, was "deemed to
have been appointed" under that
Constitution within the
intendment of article 127(8);
and that he was, therefore,
exempt from appearing before
Parliament for the process of
giving parliamentary
approval to his appointment. The
plaintiff, therefore, contended
that the Honourable Mr Justice
Apaloo should not have appeared
before Parliament to have his
appointment as Justice of the
Supreme Court subjected to
parliamentary approval under
article 127(1)(b) of the 1979
Constitution. The issue for
determination was the meaning of
the phrase "shall be deemed."
The court referred to other
parts of the 1979 Constitution
where the phrase had been used.
For instance, the President who
was, in fact, elected pursuant
to the 1979 Constitution but
before that Constitution
actually came into force a few
weeks later, was said by section
1(1) of the transitional
provisions to be "deemed" to
have been elected under that
Constitution. Similarly, the
members of Parliament elected in
the same manner as the
President, were under section
2(1) of the transitional
provisions "deemed" to have been
elected under the said 1979
Constitution. In the
circumstances, since the fact
that the President and Members
of Parliament were "deemed" to
have been elected under the 1979
Constitution did not lend itself
to debate, the court concluded
that the phrase must have the
same meaning when it is used in
article 127(8). In other words,
the court relied on the
Constitution itself to interpret
the Constitution.
My Lords, in the present case
the phrase "unable to perform
the functions of his office"
appears in the same article, to
wit, article 60. Since the
reasons for being "unable" are
stated in clause (8) of article
60 to include absence from
Ghana, it must bear the same
meaning when used in clause (11)
of the same article. I do not,
therefore, have any difficulty
in holding that absence from
Ghana is also one of the reasons
why the President and
Vice-President may in terms of
article 60(11) be "unable to
perform the functions of the
President", thus triggering the
devolution of the said functions
on the Speaker of Parliament. I
am, on the contrary, fortified
in this view because absence
from Ghana is the only
circumstance specifically cited
in article 60 to be a reason for
being "unable to perform the
functions of the President." The
other reasons are not specified
and must be identified on a case
by case basis as the occasion
arises. Ironically, the
circumstance which is being
questioned, that is, absence
from Ghana, is the only one
expressly stated as constituting
or resulting in inability to
perform the functions of the
office of the President.
The plaintiff makes a further
and broader point. He argues
that the provision for swearing
in an acting President entails
constitutional flaws and
implicates political problems.
In other words, he questions the
wisdom of the framers of our
Constitution as well as the
wisdom of the people of Ghana in
ordaining unto themselves such a
constitutional provision on the
presidency. One of the two major
attacks on the wisdom of the
people is that, to swear in an
acting President when the
serving President is absent from
Ghana, creates an undesirable
situation of a dual presidency.
The strictures here are
applicable to any situation in
which either the Vice-President
or the Speaker of Parliament
assumes the functions of the
President during the absence of
the President from Ghana. The
second criticism is that to
allow the Speaker of Parliament,
who is the Head of the
legislative branch of
government, to assume the
presidency for any length of
time violates the doctrine of
separation of powers which
underpins our constitutional
structure.
We may first deal with the
criticism that there is a
situation of a dual presidency
where the President is absent
from Ghana, performing his
official duties, but another
person is inducted to perform
his functions in Ghana during
his absence from Ghana. As the
plaintiff puts it, when the
President is absent from Ghana
on official duties, he is in
fact actively performing his
functions abroad as President,
and it is wrong to appoint
another person to act for him. I
will quote paragraph (5) of the
plaintiff's arguments of law
where he avers:
"[I]t cannot
be said that when the President
has merely travelled abroad,
particularly when he is on
official duties as Head of State
and Head of Government, he is
"unable" to act as President.
Indeed, the President travelled
to Singapore to meet his
counterpart, the Head of State
and Head of Government of
Singapore; and he proceeded
further to
Australia to attend a summit
conference of Commonwealth Heads
of States and Governments. In
this light, when the President
travelled abroad, he was not
unable to perform his duties
as President. He was indeed
performing his duties as
President." (The emphasis is
mine.)
As I understand it, this
criticism applies with equal
force, whether it is the
Vice-President or it is the
Speaker of Parliament who
assumes the functions of the
President during the absence of
the incumbent. This is an
ingenious argument but without
merit. In any case, even if I
were to agree with the plaintiff
that it was unwise or desirable
to swear in an acting President
when the incumbent was absent
from Ghana, I would not
substitute my wisdom for the
wisdom of the people of Ghana
who voted to adopt the
Constitution with those
provisions contained therein.
The words of the Constitution
are clear and unambiguous. The
provision in article 60(8) is
that: "Whenever the President
is absent from Ghana... the
Vice-President shall perform the
functions of the President until
the President returns..."
It contemplates a temporary
assumption of the functions of
the President: "Whenever the
President is absent from Ghana"
and "until [he] returns." There
arises under those words no
problem of interpretation or
construction. The words are
clear. Where the words of an
enactment are clear, it is not
permissible for the court or a
judge to speculate as to what
would be a better or more
sensible provision, under the
guise of construction. In
particular, when we are
enforcing the provision in a
Constitution which is the
supreme law of the land and
which was approved by the
people, we must unreservedly
reject any invitation to alter
the effect of the clear
stipulation. We have no such
mandate as judges. In my
judgment, the Constitution
clearly ordains that: "Whenever
the President is absent from
Ghana" the Vice-President or the
Speaker of Parliament must
perform his functions until he
returns. It does not matter
whether I consider this to be a
wise constitutional arrangement.
I am totally not persuaded by
the argument that we have to
take into account the current
technological advances which
make it possible for the
President, even when far away
from Ghana, to be able to
communicate with responsible
officials in Ghana. I agree that
we now live in the virtual
global village, and the
facilities for contact both
within and without the borders
of one's country of residence
are tremendous and fascinating.
However, that realisation does
not entitle us to ignore the
plain language of the
constitutional provision that we
are now being asked to consider.
Our Constitution was adopted and
came into force barely a decade
ago. The framers must be deemed
to be cognisant of the
technological advances to which
we are being referred, as well
as the promise of future
technological achievements. The
voting public also knew of them
when they approved of the
Constitution as it was written.
We cannot, therefore, circumvent
a clear constitutional provision
because technological facilities
may enable the President now or
in future to communicate with us
from distant countries. In my
view, the framers of the
Constitution intend that at all
times, regardless of the means
of national and international
communication, there should be
present in Ghana an official who
has duly sworn the Presidential
Oath to perform the duties of
President if the need should
arise while the President is
absent from Ghana or is
incapacitated.
Indeed, technology is an
unreliable ally in modern
constitutionalism. The same
technology that provides for
long distance communication may
also be utilised to frustrate
contact in an emergency. During
the first Gulf War of 1991, the
whole communications system of
the Iraqi Army was neutralised
by the type of technology that
established it in the first
place. As a result, the field
commanders were unable to send
or receive instructions.
Furthermore, most of the
electric power lines throughout
Iraq were knocked out of
commission by magnetic flares
and other devices, thereby
causing power failures and a
total breakdown of communication
and other electric and
electronic systems. I cannot
fathom the wisdom of the framers
of the Constitution. I think,
however, that they would not
like us to be abandoned to the
vicissitudes and vagaries of
technological advances in an
emergency. If Ghana were under
attack by a foreign power,
communication with the President
in a distant country may not
provide a prompt, adequate or
effective response. Advice to
the absent President may be
impracticable and unreliable. We
may need a real person who has
constitutionally assumed the
reins of office,
albeit
temporarily, to lead the nation
as Commander-in-Chief of our
Armed Forces until the return of
the President. This may be an
extreme example, but it can be
replicated in cases of local
crises like the recent Dagbon
crisis.
The plaintiff does not directly
make an issue of who should
perform the functions of the
President when the President,
the Vice-President and the
Speaker of Parliament are all
"unable to perform the functions
of the President" as stated in
article 60(11). However,
because of the
interpretation he invites us to
place on article 60(11), and his
appeal to the doctrine of the
separation of powers, he must
also be taken to imply that it
would also be unconstitutional
for the Chief Justice to perform
the functions of the President
temporarily when all the other
three are unable to perform
them. If that is the implication
of the arguments before us, I
would like to categorically
reject such a proposition.
Rather than rely on the doctrine
of the separation of powers in
the construction of our
Constitution, I would draw upon
a philosophical and principled
theme that appears to me to
animate the constitutional
structure that we have adopted.
That basic assumption is that
the executive power of the
presidency should never be in
abeyance. To have a situation
when there is no person in Ghana
to exercise the executive power
of the presidency would be a
prescription for chaos and
anarchy, and could expose this
nation to both internal and
external instability. If the
doctrine of the separation of
powers must be violated to
ensure that the office of the
President is never to be
unperformed and never in
abeyance, I would readily
violate it to spare the nation
anarchy and chaos. Nowhere in
the Constitution are we enjoined
to observe or apply such a
doctrine. It is a goal that may
be attained if desirable.
However, if the need arises, the
doctrine must yield to
pragmatism and political
reality. Therefore, relying on
other parts of the Constitution
and its principled structure,
it is clear that the
Constitution envisages that, if
need be, the Chief Justice, the
Head of the Judicial Branch, may
perform the functions of the
President on a temporary basis.
Such a need may arise if, God
forbid, the President, the
Vice-President and Speaker of
Parliament are all, because of a
national emergency or national
disaster, unable to perform the
functions of the President. In
their wisdom, the framers of
the
Constitution did not want Ghana
to be rudderless in such an
emergency, rare though it may
be. Therefore, the Constitution
provides clearly for an order of
precedence which must be
observed. It is not for nothing
that such an elaborate scheme
was laid out in the
Constitution. It is to avoid a
breach in the chain of command
when an emergency does not allow
for the cool deliberation to
vest a locum tenens with
the temporary executive power of
the President. For this purpose,
in article 57(2) of the
Constitution, the official and
constitutional order of
precedence is clearly
stipulated. Article 57(2) says:
"The
President shall take precedence
over all other persons in Ghana;
and in a descending order, the
Vice-President, the Speaker of
Parliament and the Chief
Justice, shall take precedence
over all other persons in
Ghana."
There is and must be a meaning
to an order of precedence. It
establishes the descending order
in which power may devolve,
particularly in an emergency.
This is often referred to as the
chain of command. I am of the
view, therefore, that not only
may the Speaker of Parliament
perform the functions of the
President when both the
President and Vice-President are
absent from Ghana or are for any
other reason unable to perform
those function, but that the
Chief Justice must perform those
functions whenever the
President, the Vice-President
and the Speaker of Parliament
are all absent from Ghana or are
otherwise unable to perform
those functions.
It must be noted that article
57(2) on the order of precedence
occurs within chapter eight of
the 1992 Constitution which is
devoted to the executive branch.
And it is not insignificant that
the said article 57(2) is under
that portion of chapter eight
which is sub-headed "The
President." In other words,
the order of precedence is set
out in the context of
"executive" power, and
specifically within the exercise
of executive power by "The
President." If there were a
rigid separation of powers as
now urged upon us, the Chief
Justice would not be mentioned
in the context of the devolution
of executive power or the order
of precedence under chapter
eight, "The Executive"
or the portion of the
Constitution devoted to "The
President." The chapter on the
judiciary is chapter eleven.
Looking at chapter eight and
other provisions of the
Constitution, I am convinced
that it is the intention of the
framers of our Constitution
that, should the need arise, the
Chief Justice must assume the
functions of President on a
temporary basis as would the
Vice-President and the Speaker
of Parliament in that descending
order of precedence.
There is, in fact, a precedent
for this under the present
Constitution. During the
Presidency of ex-President J J
Rawlings, the Speaker of
Parliament was out of the
country while the President was
also absent from Ghana on
official duties. It then became
necessary for also the
Vice-President, who had been
acting as President, to travel
to Abuja, Nigeria, for the
ECOWAS consultation on 25
September 2000. The
Vice-President, Prof J E A
Mills, notified the fact to the
Office of the Speaker of
Parliament with the request that
“pursuant to article 60(8) and
(11) of the Constitution, the
Chief Justice shall act in my
absence.” The then Chief
Justice, Mr Justice I K Abban,
was accordingly sworn in to
perform the functions of the
President temporarily.
I also take judicial notice of
the fact that in the early years
of our Independence, the Chief
Justice, Sir Kobina Arku Korsah,
did on several occasions act for
the Governor-General during the
absence of the Governor-General
from Ghana. I take judicial
notice of this because Sir Arku
Korsah, as Acting
Governor-General, did sign to
give the Royal Assent to several
Bills passed by Parliament. From
the date of Independence in
March 1957, until Ghana became a
Republic on 1 July 1960, Sir
Charles Arden-Clark and Lord
Listowel were the
Governor-Generals who signed
Bills into law on behalf of Her
Majesty the Queen, who was the
constitutional Queen of Ghana.
During this time, the
Governor-General was absent from
Ghana on different occasions. In
1957, the Chief Justice, Sir
Arku Korsah, was Acting
Governor-General and signed the
Ghana Cocoa Marketing Board
(Amendment ) Act, 1957 (No 3 of
1957) on 20 June 1957; the
Deportation Act, 1957 (No 14 of
1957), on 25 July 1957; and the
Immigration Act, 1957 (No 15 of
1957) on 25 July 1957. He
continued signing Bills until
the Statute Law (Amendment) Act,
1957 (No 22 of 1957) on 28
September, 1957. In 1958, the
Chief Justice, Sir Arku Korsah,
as Acting Governor-General, also
signed the notorious Preventive
Detention Act, 1958 (No 17 of
1958) on 18 July 1958, which
authorized the Nkrumah
Government to imprison citizens
without trial. In the acting
capacity, he also signed the
Houses of Chiefs Act, 1958 (No
20 of 1958), on 26 July 1958;
the Legal Practitioners Act,
1958 (No 22 of 1958) on 6
August 1958; and the Regional
Assemblies Act, 1958 (No 25 of
1958) on 29 August 1958. In
1960, Chief Justice Korsah, as
Acting Governor-General, did
sign the Ghana Legion Act, 1960
(No 6 of 1960) into law on 17
March 1960. There was no concern
then about the doctrine of
separation of powers even though
the Chief Justice, as Head of
the Judicial Branch, performed
the functions of the
Governor-General, the Head of
the Executive Branch. This is a
more reliable evidence of state
practice in Ghana than the
superficial citation of the
presumed practice in England.
This brief excursus into our
post-Independence constitutional
history demonstrates that Ghana
has never adopted a Constitution
providing for the erection of an
impenetrable wall of separation
between the three branches
of government.
In view of the fact that the
Chief Justice, as Head of the
Judicial Branch, did perform the
functions of the
Governor-General as Head of the
Executive Branch, it is not a
little surprising that counsel
for the plaintiff sought to rely
on the so-called British
practice to say that nobody acts
for the Queen. The
Governor-General was the
representative of the Queen, and
when he was away the Chief
Justice of Ghana was sworn in to
perform his functions. This
establishes a better precedent
than the reference to the
British Royalty. England is a
hereditary monarchy and the
Monarchy is an institution which
transcends the Queen personally.
Therefore, even though the Queen
may be personally absent, the
Civil List has provisions for
continuity, and Her Majesty's
Cabinet is in law and in
practice able to exercise most
of the powers of the Crown.
The provision in article 60 may
not be the most prudent, or even
the most practical, for handling
situations when the President is
absent from Ghana. It may at
times occasion inconvenient and
theoretically incongruous
choices. All the same, that is
what the Constitution clearly
ordains and it must be observed
until there is an amendment.
If, as he is entitled, the
plaintiff disagrees with the
stipulation in the Constitution,
he has avenues open to him. He
can appeal to the political
process to initiate the
procedure to amend the part of
the Constitution that he
disapproves. Our Constitution
has established procedures for
securing amendments. This is
because the framers anticipate
that a Constitution as a basis
for democratic government may
need amendments in response to
changing or changed
circumstances or in the light of
difficulties and flaws in its
application. The Supreme Court
is ill-suited as a forum for
advocating constitutional
amendments. The plaintiff is
urging us to become entangled in
political issues which are
properly reserved for Parliament
and the people of Ghana in a
referendum under articles
289-292 (chapter 25) of the
Constitution.
The plaintiff makes a valid
point that a person who assumes
the functions of the President
during his absence may misuse
his temporary powers to the
detriment of the country and for
improper political advantage. As
the plaintiff puts it, there
would be a dual presidency, with
the real president performing
his presidential functions
abroad while the acting
President in Ghana may be
engaged in a scheme to undermine
his authority in Ghana. For
instance, once the
Vice-President or Speaker of
Parliament has sworn the
Presidential Oath, he may
proceed to
re-shuffle the Cabinet;
dismiss the entire Cabinet in a
manner that may equal a
constitutional coup d'etat;
grant pardons to undeserving
prisoners; or declare a State of
Emergency to perpetuate himself
in power. All these and many
more may be genuine fears. The
framers of the Constitution
must, however, be deemed to be
aware of these possible threats
to the constitutional order when
they crafted article 60 of the
Constitution. They must have
formed the judgment that these
fears are outweighed by the
advantage of having a real
person physically present in
Ghana to deal with pressing
matters of state, including
external aggression, when the
President is away. In any event,
if these fears are well-founded,
legislation or constitutional
amendments may define and, if
necessary, delimit, the powers
and functions of the person who
temporarily performs the
functions of the President
during the latter's absence from
Ghana. Until that is done, we
must enforce the Constitution as
written.
The plaintiff makes a further
philosophical attack on the
provision for the performance of
his functions when the President
is incapable of performing those
functions. The criticism is
particularly directed at article
60(11) of the Constitution which
provides that the Speaker of
Parliament shall perform the
functions of the President when
both the President and
Vice-President are unable to
perform them. He says that,
allowing the Speaker of
Parliament to ever perform the
functions of the President is
objectionable because it
violates the doctrine of
the
separation of powers. For this
purpose it does not seem to
matter whether the
incapacity arises from physical
or mental infirmity, or from the
fact of absence from Ghana. The
criticism is that, whatever the
reason, the Speaker of
Parliament, being Head of the
Legislative Branch
of Government,
should never act for the
President who is Head of the
Executive Branch.
The doctrine of the separation
of powers is a philosophical and
political dissertation which
seeks to compartmentalise the
organs of government into three
distinct branches denominated as
the executive, the legislative
and the judicial branches. The
doctrine proceeds to postulate
the theory that for efficient
governance, and in particular to
avoid despotism and tyranny, the
three branches of government
must remain distinct; for, the
concentration of power in the
hands of one person or one set
of persons has the natural
tendency to breed despotism and
tyrannical rule because of the
fallibility of man.
The known apostle of the
doctrine of separation of powers
is Baron Charles de Montesquieu.
In about 1748 Montesquieu
published his monumental
L'Espirit de Lois. It has
since been regarded as the Bible
for proponents of the doctrine
of the separation of powers
in
government. It is believed that
that work greatly influenced the
structure of the Constitution of
the United States, which is
constructed on the doctrine of
the separation of powers with
checks and balances. No wonder
the plaintiff, who lives and
works in the United States,
placed considerable reliance on
Montesquieu's L'Espirit de
Lois to buttress his
argument.
As a theoretical proposition,
Montesquieu's work is acclaimed
as a classic thesis for the
separation of powers in modern
government. Therefore, even in
the face of the plain language
of article 60(11), which
explicitly designates the
Speaker of Parliament to perform
the functions of President in
specified limited circumstances,
the plaintiff says that we must
invoke the doctrine of
separation of powers to strike
down the stipulation and thereby
enjoin the Speaker of Parliament
and his successors in office
from ever performing the
functions of the President.
Before discussing the merits of
this argument, we may examine
the context in which Montesquieu
wrote his L'Espirit de Lois
and how this work has been
the philosophical foundation for
modern constitutions of the
world. The work was not written
in a vacuum. It was
written
especially as a comparative
analysis of the concentration of
power and the structure of
governments in Europe of the
mid-eighteenth century, as
contrasted with the structure of
the British Government.
Specifically it was contrasted
with the structure in his native
France where royal absolutism
had reached its apotheosis under
the Bourbons, such that Louis
XIV was able to proclaim that "L'etat
cest moi." Montesquieu was
in the circumstances fascinated
so much by the British attempts
at the separation of powers that
he embraced and then embellished
the concept of the separation of
powers of government. His book
was, therefore, intended to
validate and propagate the
doctrine as a desirable theory
in constitutionalism. It was
not necessarily an accurate
observation of the British
constitutional structure by
Montesquieu, even if the theory
itself can otherwise be
validated.
Indeed, many serious scholars,
including constitutional lawyers
and political scientists, have
opined that Montesquieu's
description and analysis of the
British constitutional structure
was imperfect and imprecise. It
has been stated by no less an
authority than the celebrated
British
constitutional lawyer, A V
Dicey, that "Montesquieu
misunderstood on this point the
principles and practice of the
English Constitution."
(See A V Dicey, The Law of
the Constitution, (8th ed),
Macmillan & Co, London, 1915,
page 220.) There are many flaws
in the admiration of the British
Constitution by Montesquieu. For
instance, he glossed over or
else did not appreciate that the
House of Lords, being the Upper
Chamber of the British bicameral
legislature, was also the
highest appellate court, the
court of last resort, in
England. Scholars today wonder
how the doctrine of separation
of powers was reconciled by
Montesquieu with the
parliamentary executive in the
Britis Constitution. In Britain,
all the members of Cabinet,
embracing the effective
executive branch of government,
must also be members of the
British legislature. There is
thus no substantial separation
between the legislative and
executive arms of government.
The amount of
subsidiary legislation in
England is so tremendous that it
has been said that the executive
branch has usurped many of the
legislative functions of
Parliament by legislative
instruments, legal notices, etc
which have the status of
legislation. Similarly, the
volume of administrative
decisions is overwhelming, and
most of these are essentially
judicial and quasi-judicial
except in name. To the extent
that he did not consider these
matters, we can say that
Montesquieu's observations are
flawed. Of course, that does not
derogate from the essential
validity and usefulness of his
thesis as a model for
constitutional government.
The modern application of
Montesquieu's doctrine of
separation of powers is
exemplified in the Constitution
of the United States of America.
Under the American Constitution,
the legislative branch is
separate from the executive
branch and from the judicial
branch. No member of the
executive branch, meaning no
secretary of a department
(equivalent to a minister and a
member of the Cabinet), may have
a seat in the Congress -
neither in the Senate nor in the
House of Representatives.
Similarly, no judge may at the
same time serve in the Congress
or in the executive branch. The
underlying philosophy is to
prevent the concentration of
power in one branch of
government. In America it has
worked well for over two
centuries; but we cannot ascribe
the credit for the success story
to only the doctrine of
separation of powers.
The
separation of powers has its
inherent disadvantage where one
branch refuses to cooperate or
work in harmony with the other
branch. It is particularly
aggravated by the so-called
checks and balances by which
each branch of government seeks
to curtail the excesses of the
other. Moreover, in the United
States the dividing line between
the executive branch and the
legislative branch has been
blurred by the huge amount of
delegated legislation that the
executive branch promulgates on
a regular basis to regulate
almost every facet of public
life. The Code of Federal
Regulations (CFR) consists of
horrendous volumes of detailed
rules and regulations which are
overwhelming by their sheer
size. It requires expertise to
navigate through the morass of
these rules and regulations
which are made by the executive
branch through the
various
departments and agencies and
bureaux. These are in a sense
intrusions by the executive
branch into the domain of the
legislature, although it is the
legislature itself that enacts
the primary laws conferring such
legislative powers on the
executive branch. Similarly,
administrative law judges
perform large and diverse types
of judicial functions. They
conduct hearings in the manner
not unlike those of judges of
the judicial branch and make
appropriate adjudications and
determinations, and render
rulings, which profoundly affect
the lives and livelihood of most
citizens. The Americans have
over the years discovered that
rigid separation of powers would
frustrate and paralyse good
administration and good
government.
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.
However, articles 76, 77 and 78
of our Constitution stipulate
for the executive branch of
government to be represented in
the legislature and vice versa.
Under article 76, the executive
power of the President is
exercisable with a Cabinet
consisting of Ministers of
State. Then article 78 provides
that "...the majority of
Ministers of State shall be
appointed from among members of
Parliament." Therefore, it is
obvious that some members of the
legislature must be also
Ministers of State. In fact, the
majority of the Ministers of
State must be drawn from the
legislative branch, that is from
Parliament. The Constitution of
Ghana, therefore, envisages that
there shall not be a rigid
separation between the executive
and the legislative branches of
government. By this arrangement,
the executive branch is able to
introduce measures in Parliament
and to directly defend its
policies and programmes before
the representatives of the
people assembled in Parliament.
It provides for a symbiotic
co-operation between the
legislative and the executive
branches, rather than erecting
an impenetrable steel wall
between them. This addresses
some of the difficulties in the
American system where, because
no member of the executive
branch sits in either house of
the Congress, the executive must
act through party leaders, who
are not executive officers, to
introduce legislative and other
measures in the House of
Representatives as in the Senate
and to explain government
policies.
In the light of these
observations, 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. For my part,
I cannot read article 60(11) as
subject to the limitations
imposed by the doctrine of the
separation of powers or any
other political or social
philosophy. Separation of
powers is a salutary principle,
and I would be disposed to
accept its application if it
would assist in the construction
of ambiguous words and phrases.
The doctrine must not, however,
be constituted into a limitation
or derogation from the political
sovereignty of the people of
Ghana when they adopt their
Constitution. The sovereign
people of Ghana can expressly or
by implication reject any aspect
or implication of the doctrine
of the
separation of powers, as they
may any other doctrine,
philosophy or principle.
Therefore, when the sovereign
people of Ghana have ordained in
article 60(11) of our
Constitution that the Speaker of
Parliament may in specified
circumstances temporarily
perform the functions of
the President,
it is not permissible for the
court to strike down this
provision merely because it
would violate the doctrine of
the separation of powers. The
constitutional provision names
"the Speaker of Parliament" by
express designation. I have no
doubt that the people of Ghana,
when they approved clause (11)
of article 60 to endow or
ascribe the temporary powers on
him, knew that the Speaker of
Parliament was the head of the
legislative branch. In deciding
that the head of the legislative
branch should perform the
functions of the absent
President who is head of the
executive branch, it is patent
to me that the people, by this
constitutional arrangement, have
pro tanto rejected that
aspect of the doctrine of the
separation of powers. Therefore
the doctrine of the
separation of powers must yield
to the expressly declared
stipulations of the Constitution
if there is a conflict or
inconsistency with the clear
language of the Constitution.
The doctrine of the separation
of powers must be a servant of
the people in providing a tool
or mechanism for the
distribution of powers and
allocation of functions to the
organs of government. It cannot
and must not enslave the people
to a particular constitutional
arrangement because of its
application or success elsewhere
or its compelling philosophical
appeal to political scientists.
In particular, it is clear from
our past and present
constitutional history that this
country has never considered the
doctrine of separation of powers
as an inflexible rule. We must
not, under the guise of
constitutional interpretation,
distort our written constitution
by inserting therein words which
the framers in their wisdom did
not employ. We must not convert
the salutary principle of the
separation of powers into an
impenetrable steel wall which
can only hinder and impede the
smooth running of our
Constitution and frustrate the
inter-relationship of the organs
of state power, when the
Constitution does not command us
so to do. Even in the
Constitution of the United
States, in which the doctrine of
separation of powers was the
underlying philosophy, there is
no such rigid separation of
powers.
Strangely enough, while
espousing the doctrine of the
separation of powers, counsel
for the plaintiff in the same
breath sought to draw an analogy
from our Ghanaian traditions of
chieftaincy. Counsel apparently
forgot that the chief in most
Ghanaian communities is a
chief-in-council, meaning that
generally he acts on the advice
of his council of elders who
often wield effective power.
That explains why, even in the
physical absence of the chief
himself, very little changes.
The stoolfather, the queenmother
and other traditional
dignitaries are able to perform
the functions of the chief when
the chief is absent from the
realm. It is, therefore, not
necessary to appoint an acting
chief to take an oath of office.
In any case, it sounds
incongruous to be extolling the
virtues of the doctrine of the
separation of powers while
inviting us to take a cue from
traditional chieftaincy. In our
traditional form of government,
there is no pretence of the
separation of powers. As I had
observed elsewhere:
"In his
territorial domain, a chief is
at the same time the supreme
legislator, the repository of
the executive powers of the
polity, the fount of justice,
the supreme judge, the fount of
honour, and commander-in-chief
of the armed forces."
(See, AKP Kludze, Chieftaincy
in Ghana, Austin & Winfield,
2000, page 224). Therefore, if
we were to construct or construe
our Constitution, or base our
democratic philosophy, with
chieftaincy in Ghana as the
essential basis therefor, there
could be no room for the
doctrine of the separation of
powers. In any event, the people
of Ghana have chosen to be a
democratic Republic. We must not
negate that choice of the people
by offering an interpretation of
the Constitution which will
result in modelling our
machinery of government, our
political institutions or the
distribution of state power to
organs of government, on the
practices associated with
traditional chieftaincy, unless
there are compelling
circumstances which warrant the
recourse to some of the gems of
our rich culture and traditional
statecraft.
My Lords, it is for these
reasons that I also agree that
the plaintiff’s claims must be
dismissed.
PROF. A. K. P. KLUDZE
JUSTICE OF THE SUPREME COURT
COUNSEL:
Dr Philip
Bondzi-Simpson for the
plaintiff.
Hon
Ambrose Dery, Deputy
Attorney-General, for the
defendant.
gso*
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