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Constitutional law - Supreme
Court - Invoking the original
jurisdiction – Interpretation –
Creation of new constituencies
- Exercise of Discretionary
Power - Articles ,23, 51 and
296 (c),51 and 296 (c) of the
1992 Constitution – Whether or
not failure as required by
Article 51 and 296 (c) of the
1992 Constitution to make the
Constitutional Instrument is a
breach of the fundamental human
right to vote of all citizens of
Ghana qualified to vote -
Dispute resolution forum
HEADNOTES
The
plaintiff, a citizen of Ghana,
issued a writ to invoke the
original jurisdiction of this
Court indorsed with the
following reliefs: a declaration
that the laying by the 1st
Defendant of the Representation
of the People (Parliamentary
Constituencies) Instrument,
2012, C.I. 78 before Parliament
purporting to create new
constituencies for Parliamentary
Elections in the Republic of
Ghana and its subsequent entry
into force on the 3rd
day of October, 2012, is
inconsistent with Articles 23,
51 and 296(c) of the
Constitution 1992; an order
declaring as null, void and of
no effect the Representation of
the People (Parliamentary
Constituencies) Instrument,
2012, C.I. 78 as having been
made in contravention of
Articles 23, 51 and 296 (c) of
the Constitution, 1992. The
first defendant has contended
that article 48 of the
Constitution provides for a
dispute
resolution forum for any
person aggrieved by a decision
of the Electoral Commission in
respect of a demarcation of a
constituency and that it is from
this forum that the plaintiff
must seek relief. This forum is
the tribunal mentioned in
article 48, which makes
provision for a right of
subsequent appeal to the Court
of Appeal from the tribunal. In
short, it contends that the
plaintiff is in the wrong forum.
The second defendant, in his
Amended Statement of Case, also
adopted the same defence.
HELD
I do not see
any other constitutional
provision that the
Representation of the People
(Parliamentary Constituencies)
Instrument, 2012, C.I. 78
infringes. The plaintiff has
not set out to make, nor has he
succeeded in making, a case that
the first defendant has not
measured up to the
constitutional standards
prescribed in article 296(a) and
(b) for the exercise of
discretion. There has thus been
no proof that either the duty to
be fair and candid or to refrain
from arbitrariness,
capriciousness or bias has been
breached. There has therefore
been no breach of article 296
For the reasons set out above, I
would dismiss the plaintiff’s
writ as not well-founded in law.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
1969
Constitution
Interpretation Act 2009 (Act
792)
CASES
REFERRED TO IN JUDGMENT
Richard Odum
Bortier & Anor v Electoral
Commission & Anor (judgment
delivered on February 23, 2012,
Suit No. J1/9/2011).
Tuffour v
Attorney-General [1980] GLR 637
Ahumah-Ocansey v Electoral
Commission [2010] SCGLR 575
Captan v Minister for Home
Affairs (Minister of Interior)
(1970) 2 G & G 457 CA
R v Askew
(1768) 4 Burr. 2186
Ghana Lotto
Operators Association & Ors. V
National Lottery Authority
[2008] SCGLR 1088
Kwakye v.
Attorney-General
(1981) GLR 9
Boyefio v.
NTHC Properties Ltd
(1996-97) SCGLR 531
Okwan v.
Amankwa II
(1991) 1 GLR 123, CA
J.H. Mensah
v. Attorney-General
(1996-97) SCCLR 329
Dolyphyne
(No. 2) v. Stevedoring Co. Ltd
(1996-97) SCGLR 373
Afendza III
v. Tenga
(2005-2006) SCGLR 414
Brown v.
Attorney-General (Audit Service
Case)
2010 SCGLR 183
In
Republic v. High Court,
Koforidua; Ex parte Eastern
Regional Development Corporation
(2003-2004) SCGLR 21
Brownlee v. R
(2001) 5 LRC 180
Juandoo v.
Attorney-General of Guyana
1971 AC 972, PC
Awuni v. West
African Examinations Council
(2003-2004) SCGLR 471.
BOOKS
REFERRED TO IN JUDGMENT
A Sourcebook
of the Constitutional Law of
Ghana
Vol.II (Part 2) 457 at 460
University of
Ghana Law Journal ([1971] 7 UGLJ
98) by Professor S. O. Gyandoh,
DELIVERING
THE LEADING JUDGMENT
DR. DATE-BAH
JSC:
COUNSEL
GODFRED DAME
YEBOAH WITH HIM EVA OTCTHERE,
MIKE OCQUAYE JNR. LED BY NANA
JOE GHARTEY AND EFUA GHARTEY
FOR THE PLAINTIFF.
JAMES
QUARSHIE-IDUN (WITH HIM ANTHONY
DABI) FOR THE 1ST
DEFENANT.
SYLVESTER
WILLIAMS ( PRINCIPAL STATE
ATTORNEY ) FOR THE 2ND
DEFENDANT.
DAVID ANNAN
FOR 1ST AMICUS
CURIAE.
DR. DOMINIC
AYINE AS 2ND AMICUS
CURIAE.
______________________________________________________________________
J U D G M E N T
______________________________________________________________________
DR. DATE-BAH
JSC:
On 6th
July 2012,
the
plaintiff, a citizen of Ghana,
issued a writ to invoke the
original jurisdiction of this
Court indorsed with the
following reliefs:
(i)
“A declaration that upon a true
and proper interpretation of
Articles
23, 51 and 296 (c), the 1st
defendant in the exercise of its
functions
and discretionary power in
creating
new constituencies, is
required to make by
Constitutional Instrument,
regulations not inconsistent
with the Constitution or any
other law to govern the exercise
of its discretionary power;
(ii)
An order directed at the 1st
Defendant compelling the 1st
Defendant to, as required by
Articles
51 and 296 (c) of the 1992
Constitution, make by
Constitutional Instrument not
inconsistent with the
Constitution or any other law,
regulations to govern the
exercise of its discretionary
power to create new
constituencies including in
particular, the specification of
the formula and mechanism to be
used in the creation of new
constituencies;
(iii)
A declaration that
failure
by the 1st Respondent
as required by Article 51 and
296 (c) of the 1992 Constitution
to make the Constitutional
Instrument referred to in (i)
above is a breach of the
fundamental human right to vote
of all citizens of Ghana
qualified to vote;
(iv)
An order of perpetual injunction
restraining the 1st
Defendant from laying before
Parliament any Constitutional
Instrument creating new
constituencies and or revoking
the Representation of the People
(Parliamentary Constituencies)
Instrument, 2004 [C.I. 46],
until and unless the 1st
Defendant has laid before
Parliament a Constitutional
Instrument which sets out
clearly, regulates and governs
the manner in which the 1st
Defendant intends to exercise
its discretionary powers in
creating new constituencies
including particularly, the
specification of the formula and
mechanism to be used in the
creation of new constituencies,
and that Constitutional
Instrument has come into force;
(v)
An order of perpetual injunction
restraining the 1st
Defendant from laying before
Parliament any Constitutional
Instrument creating new
constituencies and or revoking
the Representation of the People
(Parliamentary Constituencies)
Instrument, 2004 [C.I. 46] until
the hearing and final
determination of this matter.
(vi)
Any other order or orders as
this Honourable Court may seem
meet.”
On the 3rd
October, 2012, the plaintiff
filed a motion for leave to
amend the writ of summons by
adding the following further
reliefs:
i.
“a
declaration that the laying by
the 1st Defendant of
the Representation of the People
(Parliamentary Constituencies)
Instrument, 2012, C.I. 78
before Parliament purporting to
create new constituencies for
Parliamentary Elections in the
Republic of Ghana and its
subsequent entry into force on
the 3rd day of
October, 2012, is inconsistent
with Articles 23, 51 and 296(c)
of the Constitution 1992;
ii.
an order declaring as null, void
and of no effect the
Representation of the People
(Parliamentary Constituencies)
Instrument, 2012, C.I. 78 as
having been made in
contravention of Articles 23, 51
and 296 (c) of the Constitution,
1992.”
Leave was
duly granted the plaintiff on 10th
October for these additional
reliefs to be added to the
endorsement on the Writ.
The first
defendant has contended that
article 48 of the Constitution
provides for a dispute
resolution forum for any person
aggrieved by a decision of the
Electoral Commission in respect
of a demarcation of a
constituency and that it is from
this forum that the plaintiff
must seek relief. This forum is
the tribunal mentioned in
article 48, which makes
provision for a right of
subsequent appeal to the Court
of Appeal from the tribunal.
It
cites in support of this view
the Supreme Court decision in
Richard Odum Bortier & Anor v
Electoral Commission & Anor
(judgment delivered on February
23, 2012, Suit No. J1/9/2011).
In
short, it contends that the
plaintiff is in the wrong forum.
The second defendant, in his
Amended Statement of Case, also
adopted the same defence.
Pursuant to
leave granted by Ansah JSC,
sitting as a single Justice of
the Supreme Court on an
interlocutory matter, an
Amicus Curiae Statement of
Case was filed on behalf of Mr.
Chris Ackummey on 3rd
October 2012. This Statement of
Case also endorsed the position
adopted by the first defendant
based on the Bortier
case.
In the
Richard Odum Bortier case,
the plaintiff’s claims did
relate to the demarcation of the
boundaries of constituencies and
Akuffo JSC, delivering the
judgment of the Supreme Court
said:
“Even though
the declarations sought appear,
largely to be based on basic
Constitutional principles, we
have no doubt that, in this
case, what the Plaintiff seeks
to dispute is the manner in
which the EC has demarcated, is
demarcating and might demarcate
boundaries in the exercise of
its power under Article 47.
Such a challenge cannot be
mounted in this court through an
invocation of our original
jurisdiction.”
However, in
this present case, the first
defendant’s argument based on
the Richard Odum Bortier
case is not well founded, since
the plaintiff’s complaint in
this case is not about “a
decision of the Electoral
Commission in respect of a
demarcation of a boundary” (the
language of article 48), but
rather about the validity of the
Representation of the People
(Parliamentary Constituencies)
Instrument, 2012, C.I. 78. As
is well-known, article 2(1)
vests this Court with
jurisdiction to entertain suits
challenging the validity of
enactments which are in conflict
with the Constitution. Article
2(1) provides as follows:.
“(1) A person who alleges that -
(a) an enactment or anything
contained in or done under the
authority of that or any other
enactment; or
(b) any act or omission of any
person;
is inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect.”
Accordingly,
in my view, this Court is vested
with jurisdiction over the
plaintiff’s suit. Although a
declaration by this Court that
the Representation of the People
(Parliamentary Constituencies)
Instrument, 2012, C.I. 78 is
invalid would have an impact on
the demarcation of constituency
boundaries, there is also a
different genuine issue in
controversy regarding the impact
of an alleged breach of article
296(c) on the validity of the
Instrument. This issue in
controversy cannot be ignored by
this Court, simply because it
has a side effect on the
demarcation of constituency
boundaries. To describe the
impact of this case on the
demarcation of constituency
boundaries as a side effect is
not to triavialise that impact,
but to give pride of place to
the enforcement of the supremacy
of the Constitution. Where
invalidity of an enactment is in
issue, the exclusive original
jurisdiction of this Court under
article 130(1) of the
Constitution prevails over the
jurisdiction of the tribunal
established under article 48,
even if the invalidity would
have an impact on the
demarcation of constituency
boundaries. The Bortier
case (supra) is clearly
to be distinguished from the
present case, since in the
Bortier case an issue of
invalidity of an enactment on
account of its conflict with the
provisions of the Constitution
was not raised.
The crucial
issue in this case is the
interpretation to be given to
article 296(c) of the 1992
Constitution. Article 296 of
the 1992 Constitution reads as
follows:
“Where in this Constitution or
in any other law discretionary
power is vested in any person or
authority -
(a) that discretionary power
shall be deemed to imply a duty
to be fair and candid;
(b) the exercise of the
discretionary power shall not be
arbitrary, capricious or biased
whether by resentment, prejudice
or personal dislike and shall be
in accordance with due process
of law; and
(c) where the person or
authority is not a judge or
other judicial officer, there
shall be published by
constitutional instrument or
statutory instrument,
regulations that are not
inconsistent with the provisions
of this Constitution or that
other law to govern the exercise
of the discretionary power.”
This text of
article 296 originates from an
identical provision contained in
article 173 of the 1969
Constitution. The plaintiff’s
argument based on paragraph (c)
of this provision has
implications way beyond
elections and the constitutional
authority of the Electoral
Commission. Invalidating the
Constitutional Instrument in
question on the ground urged by
the plaintiff would put at risk
innumerable decisions reached in
government pursuant to the
exercise of discretion. In this
connection, it is instructive to
note what the Constitutional
Commission which put forward the
proposal on this issue for
consideration by the Constituent
Assembly in 1968 had to say on
the rationale for it (in
paragraphs 731 to 733 of its
Proposals of the Constitutional
Commission for a Constitution
for Ghana at pp. 199-200):
“Exercise
of Discretionary Power
731.
Experience has shown that it is
practically impossible for any
Parliament however
well-intentioned to carry out
all its legislative duties
properly. It has thus become
the fashion for discretionary
power to be given to Ministers
under Acts of Parliament for
certain things to be done,
usually of an administrative
nature. This is often referred
to as delegated legislation.
This system of delegated
legislation can easily lead to
abuse. We fully appreciate that
delegated legislation by and
large are laid on the table of
Parliament for the scrutiny of
members of Parliament.
Experience has shown that
placing such legislation on the
table has become a mere
formality and no effective check
is thereby placed on delegated
legislation.
732. Much
harm is done thereby to the
individual and even though we
have proposed in Chapter
Fourteen of this Memorandum the
establishment of an Ombudsman
who will deal with
administrative complaints we
strongly feel that there must be
some constitutional limitation
on the exercise of discretionary
power and we therefore
propose that when discretionary
power is given to any person or
authority that person should
publish a statutory instrument
which will set out the
principles, the manner and the
mode of the exercise of the
discretionary power conferred.
733. We go
further and propose that any
discretionary power given to any
authority should by itself imply
a duty to be fair and candid so
that its exercise is not
arbitrary, capricious or biased
either by resentment, prejudice
or personal dislike. And that
any such exercise shall be in
accordance with due process of
law. This in our view will
make it possible for the Courts
to determine not only the limits
of the exercise of the
discretionary power, but also
the reasonableness of it and
whether the power so vested has
been used in good faith.”
It was on the
basis of this rationale that
article 173 of the
1969
Constitution was adopted.
It was in the following terms:
“Where in
this Constitution or in any
other law discretionary power is
vested in any person or
authority,
(a)
that discretionary power shall
be deemed to imply a duty to be
fair and candid;
(b)
the exercise of any such
discretionary power shall not be
arbitrary, capricious or biased
either by resentment, prejudice
or personal dislike and shall be
in accordance with due process
of law; and
(c)
the person or authority, not
being a Judge or other Judicial
Officer in the exercise of his
judicial functions, in whom the
discretionary power is vested
shall, by constitutional or
statutory instrument, as the
case may be, make and publish
Regulations, not inconsistent
with any provision of this
Constitution or of that other
law, which shall govern the
exercise of that discretionary
power.”
Thus, article
173(c) of the 1969 Constitution,
if literally interpreted, would
seem to require that before any
discretion is exercised by a
public official or agency, the
official or agency must first
publish regulations governing
the exercise of that
discretion. It is also possible
to interpret the quotation (supra)
from the 1968 Constitutional
Commission’s Proposals as
supporting such an expansive
literal interpretation, when the
Commission says: “we
therefore propose that when
discretionary power is given to
any person or authority that
person should publish a
statutory instrument which will
set out the principles, the
manner and the mode of the
exercise of the discretionary
power conferred”.
However, such
an expansive literal
interpretation would lead to
grave mischief. It would lead
to a nuclear melt-down, so to
speak, of government, as we have
known it since 1969. It would
be thoroughly impractical for
public officials and agencies in
general to publish regulations
governing their discretions
before they could exercise them,
on pain of the invalidity of
those discretionary decisions.
Literally thousands of decisions
already taken by public
officials and agencies since
1969 would be rendered invalid
and would have to be declared so
by this Court. These invalid
decisions would include the last
creation of additional
constituencies in 2004, by the
Representation of the People
(Parliamentary Constituencies)
Instrument, 2004 (CI 46). In an
Amicus Curiae brief filed
by Dr. Dominic Ayine in support
of the defendant’s case, he
spells out what I have
metaphorically referred to above
as a nuclear melt-down as
follows:
“…accepting
the argument of the Plaintiff in
this case has deep-seated
constitutional implications.
For example, it would mandate a
concomitant declaration of past
actions taken by the Commission
in breach of article 296(c) as
unconstitutional. This is one
of the most serious logical
consequences of the argument of
the Plaintiff; because these
past actions cannot mature into
constitutional acts through the
effluxion of time, this Court
cannot turn a blind eye to
them.”
(Dr. Dominic
Ayine is a lecturer from the
University of Ghana’s Faculty of
Law who filed the Amicus
Curiae brief without leave
of the Court. When he appeared
before this Court, on 10th
October 2012, and the Court
pointed out to him that he was
not entitled to file the brief
without leave, he duly applied
for leave, which the Court
granted.) Dr. Ayine’s analysis
is, of course, correct in that
there is authority to the effect
that estoppel cannot operate in
public law to bar the
invalidation of unconstitutional
acts. This is the unequivocal
effect of Sowah JSC’s judgment
in
Tuffour v Attorney-General
[1980] GLR 637, in which he
clarified the law as follows (at
p. 655):
“Before the
court enters upon the
interpretation of the relevant
provisions it would dispose of
the arguments relating to the
doctrines of estoppel urged upon
it. The very first principle
that is enshrined in the
Constitution is in article 1 (2)
which provides:
“(2) This
Constitution shall be the
supreme law of Ghana and any
other law found to be
inconsistent with any provision
of this Constitution shall, to
the extent of the inconsistency,
be void and of no effect.”
This is the
constitutional criterion by
which all acts can be tested and
their validity or otherwise
established. A plaintiff under
article 1 (2) of the
Constitution reed not have any
community of interest with any
person or authority. His
community of interest is with
the Constitution.
Neither the
Chief Justice nor any other
person in authority can clothe
himself with conduct which the
Constitution has not mandated.
To illustrate this point if the
Judicial Council should write a
letter of dismissal to a judge
of the Superior Court of
Judicature and that judge either
through misinterpretation of the
Constitution or indifference
signifies acceptance of his
dismissal, can it be said that
[p.656] he cannot subsequently
resile from his own acceptance
or that having accepted his
dismissal, he is estopped by
conduct or election from
challenging the validity of the
dismissal? This court certainly
thinks not. The question whether
an act is repugnant to the
Constitution can only be
determined by the Supreme Court.
It is that court which can
pronounce on the law.
The decision
of Mr. Justice Apaloo to appear
before Parliament cannot make
any difference to the
interpretation of the relevant
article under consideration
unless that decision is in
accordance with the postulates
of the Constitution. It is
indeed the propriety of the
decision which is under
challenge. This court does not
think that any act or conduct
which is contrary to the express
or implied provisions of the
Constitution can be validated by
equitable doctrines of estoppel.
No person can make lawful what
the Constitution says is
unlawful. No person can make
unlawful what the Constitution
says is lawful. The conduct must
conform to due process of law as
laid down in the fundamental law
of the land or it is unlawful
and invalid.”
The plaintiff’s response to the
ripple effect of invalidating CI
78 is to cite
Ahumah-Ocansey v Electoral
Commission [2010] SCGLR 575
in which the Supreme Court
gave prisoners the right to be
registered to vote. He says
that this interpretation by the
Supreme Court implied that
prisoners had had the right to
be registered to vote right from
the inception of the 1992
Constitution and yet the Supreme
Court had not held invalid all
previous elections held under
the Constitution in which
prisoners had not been able to
exercise their vote. However,
with respect, this argument is
flawed. Invalidity as a result
of non-compliance with the
literal meaning of article
296(c) would appear to occur
automatically, since what is
contemplated is
unconstitutionality of an act
which is in conflict with a
provision of the Constitution.
Invalidity of an enactment flows
as an inevitable consequence of
its non-compliance with a
provision of the Constitution.
This is what article 1(2) of the
1992 Constitution demands.
Article 1(2) states that:
“(2) 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.”
The failure
of prisoners to register and to
vote does not have a similarly
automatic effect on the validity
of the elections in which they
did not participate.
The literal
interpretation advocated by the
plaintiff in this case cries out
for modification, in the context
of the realities of actual
government practice. This much
was recognised by Akufo-Addo CJ
in his judgment in
Captan
v Minister for Home Affairs
(Minister of Interior)
(1970) Gyandoh & Griffiths,
A
Sourcebook of the Constitutional
Law of Ghana Vol.II (Part 2)
457 at 460, where,
delivering the judgment of the
Court of Appeal sitting as the
Supreme Court, he had this to
say:
“There is a
very loose sense in which it can
be said that most decisions
taken by ministers in the day to
day performance of their
ministerial duties involve the
exercise of some discretion, and
it is in this sense that the
minister’s act in revoking a
residence permit may be said to
involve the exercise of
discretion. But can it be
seriously argued that the
exercise of discretion in this
sense by ministers must comply
with the requirements of article
173, and in particular, with
article 173(c) which requires
that the minister shall “make
and publish Regulations … which
shall govern the exercise of
that discretionary power”? The
government could hardly govern
if this were so. In so far as
the Memorandum contained in the
Proposals for a Constitution
for Ghana is any guide at
all, the three paragraphs,
namely, 731, 732 and 733 at
pages 199-200 of the
Proposals cited by Mr.
Quashie-Idun and paragraph 515
at page 141 show clearly that
the sort of discretionary powers
contemplated by article 173 are
those that arise when the
legislature or the executive
constitutes an administrative
agency or some other authority
with power to adjudicate
quasi-judicially on
administrative matters or with
power of legislation delegated
to it. Apart from the
aforementioned observations in
the Proposals the
Constitution itself contains no
definition of “discretionary
powers”. It may, however, be of
some significance to point out
that the phrases used in article
173(a) and (b) to describe the
requirements for the exercise of
discretionary powers were lifted
almost verbatim from a dictum of
Lord Mansfield C.J. in the old
case of
R v Askew (1768) 4 Burr.
2186 at p. 2189 in an appeal
that came before him from the
determination by the College of
Physicians as to competence to
practise medicine. Lord
Mansfield’s dictum was that the
exercise of discretion of a
judicial nature imports a duty
to be “fair, candid,
unprejudiced; not arbitrary,
capricious or biased; much less,
warped by resentment or personal
dislike.”…
To determine
whether a discretionary power is
exercisable in a judicial manner
or is one of an executive nature
one has to examine the wording
of the instrument creating the
power, the subject-matter to
which the power is related, the
circumstances in which and the
conditions under which the power
is exercisable and the character
of the authority to which it is
entrusted.”
From this
passage, it would appear that
Akufo-Addo CJ, who had earlier
also been the Chairman of the
1968 Constitutional Commission
that proposed the constraint on
the exercise of discretion
contained in the current article
296(c) of the 1992 Constitution,
was not inclined towards an
expansive literal
interpretation. Even if he and
his Commission were so inclined,
there would still be a question
as to what weight should be
given to the original subjective
intention of the framers of the
provision, given the disruptive
consequences of such an
expansive interpretation.
Constitutional interpretation
should never be mechanical,
oblivious of the destructive
results or implications of a
particular interpretation, when
an alternative interpretation is
available that could avert the
identified mischief. In short,
as this Court has held many
times, a purposive approach
needs to be applied.
In
Ghana
Lotto Operators Association &
Ors. V National Lottery
Authority [2008] SCGLR
1088, when delivering
the unanimous judgment of the
Supreme Court, I stated as
follows, in connection with what
weight is to be given to the
original subjective intent of
the framers of the Constitution
(at pp. 1103-4):
“If one
adopts an originalist approach
(to borrow a term from United
States constitutional law), that
is, if one looks no further than
the framers’ intention, one
could make a case for the
non-justiciability of the
principles. This case is however
weakened by the fact that the
language proposed by the framers
(in this case, the Committee of
Experts) to carry out their
intent was not adopted by the
Consultative Assembly.
Accordingly, the inference may
legitimately be drawn that the
Consultative Assembly was of a
different view. Moreover,
reliance on original intent is a
method which does not
necessarily produce the right
interpretative results, as the
quotation from the
Theophenous case (supra)
demonstrates. While the 1992
Constitution has not yet endured
for even two decades, it is
nonetheless not safe to rely on
this mode of interpretation
exclusively or even
predominantly. A more modern
approach would be to see the
document as a living organism.
As the problems of the nation
change, so too must the
interpretations of the
Constitution by the judiciary.
Interpreting the Constitution as
a living organism implies that
sometimes there may be a
departure from the subjective
intention of the framers of it.
The objective purpose of the
Constitution may require an
interpretation different from
that of the original framers of
it. I think that the issue of
the enforceability of Chapter 6
of the Constitution probably
illustrates the divergence
between subjective and objective
purpose, if one is inclined to
the conclusion that the framers’
intent was against
justiciability.”
I continue to
be persuaded of the need for the
Supreme Court to interpret the
Constitution as a living
document, so to speak. This
remains the preferable route to
distilling the right meaning
from the Constitution.
Accordingly, article 296(c) has
to be interpreted as part of a
living Constitution that
provides a workable and
functional framework for
governance in Ghana. An
interpretation that leads to
nuclear melt-down, as it were,
of government should be
avoided. That is why the cue
given by Akufo-Addo CJ in the
Captan case needs to be
taken up. This court should
follow the highly persuasive
authority of Captan. The
obligation to make regulations
should be limited to discretions
that are exercised in
quasi-judicial situations. By
that I mean where adjudication
is involved. Although the
learned Chief Justice Akufo-Addo
suggests in his judgment that
the obligation of the 1969
Constitution’s equivalent of
article 296(c) is also to apply
to situations where a power of
legislation is delegated to a
public official or body, this is
difficult to justify, in the
light of the considerations
already sketched out above.
Accordingly, since the
discretion that has been
exercised by the Electoral
Commission is not
quasi-judicial, the obligation
imposed by article 296(c) should
not apply to it. As Akufo-Addo
CJ said in Captan,
regarding Ministers complying
with the equivalent of article
296(c) of the 1992 Constitution,
in relation to the exercise of
their discretionary powers, “The
government could hardly govern
if this were so.” This
sagacious comment applies with
equal force in relation to the
first defendant in this case.
The Electoral Commission could
hardly perform its functions if
prior to each time it exercises
a discretion it has to
promulgate regulations
containing the principles
governing the exercise of that
discretion. The framers of
article 296(c) of the 1992
Constitution could not have
intended such an absurdity. As
Sowah JSC said in Tuffour v
Attorney-General [1980] GLR
637 at p. 648:
“And so a
construction should be avoided
which leads to absurdity. And
when a particular interpretation
leads to two, shall we say
"inconsistent" results, the
spirit of the Constitution would
demand that the more reasonable
of the two should be adhered to.
We must have recourse to the
Constitution as a whole.”
To take
account of the unravelling of
government that would be the
consequence of upholding the
plaintiff’s argument is not to
submit to political expediency,
but rather to give the relevant
provision of the Constitution a
purposive interpretation that
preserves its objective of
providing an effective framework
for good governance, rather than
serving as an instrument for the
unleashing of chaos in
government.
The
plaintiff, however, is of a
different view. He argues in
his Supplementary Statement of
Case filed on 12th
October 2012 with leave of this
Court that:
18. “We
submit that article 47 of the
1992 Constitution is merely
indicative of what must be
included in a constitutional
instrument made regarding the
article and we submit further
that the constitutional
instrument should be in
conformity with article 296 (c)
of the 1992 Constitution in
that, it must set out clearly
the principles, the manner and
mode of the exercise of the
discretionary power by the
Electoral Commission.
19.
Article 47 is replete with
discretionary power. It does not
set out in full the principles,
manner and mode of the exercise
of the power of the Electoral
Commission under the article. It
therefore cannot be the answer
to dispense with the requirement
as contained in article 296 (c).
For example, article 47 (1)
provides as follows:
47 (1) Ghana
shall be divided into as many
constituencies for the purpose
of election of members of
Parliament as the Electoral
Commission may prescribe, and
each constituency shall be
represented by one member of
Parliament.
No where in article 47
does it indicate further the
maximum or minimum number of
constituencies that Ghana may
have. This discretion is an
example of a discretion that
must be defined by way of a
constitutional instrument.
Another example is the number
of persons per constituency. The
maximum and minimum number of
persons per constituency must
also be defined by
constitutional instrument.
Yet another example of
discretion that must be defined
in more detail is when to
undertake the review of
constituencies envisaged under
article 47 (5). The time frame
for review is after seven years
of the last review or within
twelve months after the
publication of a population
census, whichever may come
first. Thus if seven years have
lapsed after the last review
under article 47 (5) and a
population census has not been
published the Electoral
Commission as the position is
now is under no obligation to
undertake a review.
Also with regards to after
the publication of a population
census the only fetter on the
discretion of the Electoral
Commission to act is the twelve
month period. Within this twelve
month period many questions
arise. Is it reasonable for
example, for the Electoral
Commission to undertake a review
two weeks before a general
election.
20. It
is for the reasons stated above,
we respectfully submit, that the
argument that article 47 itself
contains the principles, manner
and mode by which the Electoral
Commission should exercise its
discretionary power under the
article is not tenable.
21. We
submit further that the upon a
true and proper interpretation
of articles 47, 51 and 296 (c),
the Electoral Commission is
required to publish a
constitutional instrument to set
out the principles, mode and
manner by which it intends to
exercise its power under article
47 of the Constitution. We
further submit that this may be
done before it exercises its
power of reviewing
constituencies or together with
its power to review
constituencies.
22.
Thus C. I. 78 could contain the
principles; mode and manner by
which the EC intended to
exercise its powers under
article 47 as well as the
results of the actual exercise
of the discretionary power. It
need not be two separate
constitutional instruments but
any constitutional instrument
made in furtherance of the
exercise of the power of the
Electoral Commission under
article 47 should include the
principles, manner and mode by
which the power will be
exercised or has been
exercised.”
The plaintiff
buttresses his case by citing an
article entitled “Discretionary
Powers in the Second Republic”
in the
University of Ghana Law Journal
([1971] 7 UGLJ 98) by Professor
S. O. Gyandoh, formerly of
the University of Ghana, which
is very critical of the decision
in Captan. Inter alia,
he writes that:
“The main
thrust of my reaction to the
ruling in the Captan case, so
far as it relates to the
constitutional requirements for
the exercise of discretionary
powers, is that though the
framers of our Constitution,
mindful of the excesses of
executive authority during our
recent history, have sought to
carefully circumscribe the
exercise of discretionary powers
generally, the Supreme Court has
by that ruling, reduced the
broad scope of the
constitutional guarantee of due
process of law contained in
Article 173 to a practical
nullity. This the Court has
done out of what appears like
excessive zeal, and perhaps an
unexamined enchantment with an
artificial distinction, which,
in its place of birth, is on its
way out, as we have seen.
The Captan
case, like the English wartime
decision of Liversidge v
Anderson should, in my
respectful submission, be
limited to its special facts.
We can validly say that the
Captan case involved the
exercise of a special kind of
power which the Constitution
allows to be exercised without
reference to the requirements of
Article 173, without being
committed to the more
questionable proposition that
the exercise of the power
granted could not be judicially
reviewed because it was not of a
“judicial” character. In other
words, the Captan case could,
and in my respectful submission
should, have been decided on the
simple ground that the relevant
provisions of the Constitution
permit the Minister of the
Interior, acting under the
Aliens Act, 1963, to expel an
alien without assigning any
reasons or granting him a
hearing, and that such action,
by virtue of these same
Constitutional provisions,
cannot be said to contravene the
due process clause of the
Constitution.
If the Court
had been content to rest its
ruling on the conclusion that
neither the Constitution nor the
Aliens Act confers reviewable
discretionary power on the
Minister in respect of the
expulsion or exclusion of
aliens, at least we could reap
some comfort from the limited
effect of such a ruling. But to
go further, as did their
Lordships, to make ex cathedra
pronouncement that the
provisions of Article 173, and
in particular the concept of due
process of law, can only be
invoked when the action
complained of involves an
enquiry of a “judicial” nature
is to lay an unfortunate
foundation for the perpetration
for an indefinite span of time
of what the late Earl Bertrand
Russell would have called
“important error”. Happily, our
Supreme Court is not bound to
follow its own previous
decisions or those of any other
Court or Tribunal anywhere and
therefore the opportunity still
exists for a wider and less
confusing exposition of the
locus operandi of Article 173 by
our highest Court.”
With the
greatest respect, I do not share
this opinion of Professor
Gyandoh. Akufo-Addo CJ in his
remarks in Captan was
rowing back on the wide
statements made in the
Proposals for a Constitution for
Ghana, presumably because of
his subsequent realisation that
the realities of government made
the initial proposals
impractical. Thus, far from
this Court limiting the rule in
Captan to the facts of
the case, there is ample policy
justification for this Court to
follow it. Restricting the
scope of article 296(c) by
purposive interpretation is not
equivalent to removing due
process from the exercise of
discretionary power. Article
296(a) and (b) contain the
standards for the application of
such due process. Those two
clauses of Article 296, in
conjunction with article 23,
assure residents in Ghana of
fairness and impartiality in
administrative processes.
Limiting the scope of the
obligation to publish
regulations before the exercise
of discretionary power does not
significantly impair due process
in administrative matters in
Ghana; rather it avoids the
unravelling of the system of
government as we have known it
since 1969. The standard
embodied in article 296(c) may
well offer a desirable benchmark
for good practice and I commend
it to those who exercise
discretion to adhere to it
whenever practicable, but
non-compliance with it should
not be treated as resulting in
invalidity, for the reasons
already explained above.
The second
defendant in his Statement of
Case rested his defence on an
assertion that the first
defendant had not exercised a
discretion when it formulated
the Representation of the People
(Parliamentary Constituencies)
Instrument, 2012, C.I. 78. This
is palpably incorrect. The
first defendant indubitably did
exercise a choice or choices in
formulating CI 78, although it
was not an untrammeled choice or
choices, since the criteria
listed in article 47 of the 1992
Constitution provided it with
guide posts. The issue is thus
not whether a discretion was
exercised, but rather whether
the discretion exercised was one
to which article 296(c)
applied. As shown above, I do
not think that the discretion
exercised by the first defendant
was one to which article 296(c)
applied. However, it would be
difficult, linguistically and in
terms of plain meaning, to
justify the assertion that no
discretion was exercised by the
first defendant.
I do not see
any other constitutional
provision that the
Representation of the People
(Parliamentary Constituencies)
Instrument, 2012, C.I. 78
infringes. The plaintiff has
not set out to make, nor has he
succeeded in making, a case that
the first defendant has not
measured up to the
constitutional standards
prescribed in article 296(a) and
(b) for the exercise of
discretion. There has thus been
no proof that either the duty to
be fair and candid or to refrain
from arbitrariness,
capriciousness or bias has been
breached. There has therefore
been no breach of article 296,
read as a whole.
For the
reasons set out above, I would
dismiss the plaintiff’s writ as
not well-founded in law.
Before I
conclude, let me place on record
my appreciation of the industry
and skill of all counsel who
have been involved in this case,
including those who provided the
amicus curiae briefs.
Their collective excellent
contribution has enabled this
court to clarify an important
area of our constitutional and
administrative law.
(SGD) DR. S.
K. DATE-BAH
JUSTICE OF THE SUPREME
COURT
ATUGUBA AG.
C.J
I agree with
the conclusion and most of the
reasons given by Dr. Justice
Date-Bah in his masterly
judgment. I however deem it
necessary to express a few views
on some of the issues in this
case.
The proper
interpretation of article 296(c)
Article
296(c) provides as follows:
“296. Where
in this Constitution or in any
other law discretionary power is
vested in any person or
authority –
x x x
(c) where the
person or authority is not a
judge or other judicial officer,
there shall be published by
constitutional instrument or
statutory instrument,
regulations that are not
inconsistent with the provisions
of this Constitution or that
other law to govern the exercise
of the discretionary power.”
The wording
of this provision is very wide
indeed. However it is a trite
principle of the construction of
statutes now fully backed by
section 10(4) of the
Interpretation Act 2009 (Act
792) that the widest words of a
statute can be cut down by the
context, scope, surrounding
circumstances and true purpose
thereof. Numerous decisions
abound in Ghana to that effect.
In Kwakye v. Attorney-General
(1981) GLR 9 at 13 it was held
that the jurisdiction of a court
can be invoked as soon as an act
is committed or even threatened.
Nonetheless, this court held in
Boyefio v. NTHC Properties
Ltd (1996-97) SCGLR 531 that
a restriction on the right of
resort by a party to court until
the Land Title Adjudication
Committee has had the
opportunity of determining a
dispute which has arisen in a
registration district in the
course of a registration of
title to land or interest in the
Land Title Registry is not
inconsistent with articles
125(3) and 140(1) of the 1992
Constitution.
In Okwan
v. Amankwa II (1991) 1 GLR
123, CA, even though the
definition of stool land by
article 213 of the Constitution,
1979 clearly embraced family
lands, the Court of Appeal held
that a literal interpretation of
that definition would lead to
absurd results. Particularly, at
135 Apaloo CJ stated the matter
emphatically:
“I
appreciate that this
interpretation makes the special
mention of family land in the
definition of stool land otiose
and from that point of view,
unsatisfactory,but is a more
satisfactory course than to
impute to the Constitution
makers an intention to convert,
by mere definition and without
more, all family lands into
stool lands.”(e.s.)
Again in J.H. Mensah v.
Attorney-General (1996-97)
SCCLR 329 this court held,
despite the clear provisions of
article 81 that a minister or
deputy minster’s term of office
runs out with the President’s
term of office; in order to
avoid absurdity.
In Dolyphyne (No. 2) v.
Stevedoring Co. Ltd
(1996-97) SCGLR 373 and
Afendza III v. Tenga
(2005-2006) SCGLR 414 this court
had to construe the very wide
words governing the grant of
special leave to this court in
article 131 of the Constitution
as follows:
“131. (1) An
appeal shall lie from a judgment
of the Court of Appeal to the
Supreme Court –
(a)
as of
right in a civil or criminal
cause or matter in respect of
which an appeal has been brought
to the Court of Appeal from a
judgment of the High Court or a
Regional Tribunal in the
exercise of its original
jurisdiction; or
(b)
with
the leave of the Court of
Appeal, in any other cause or
matter, where the case was
commenced in a court lower than
the High Court or a Regional
Tribunal and where the Court of
Appeal is satisfied that the
case involves a substantial
question of law or is in the
public interest.
(2)
Notwithstanding clause (1) of
this article, the Supreme Court
may entertain an application for
special leave to appeal to the
Supreme Court in any cause or
matter, civil or criminal, and
may grant leave accordingly.”
(e.s.)
This court held that article
131(2) did not by its very wide
wording purport to empower this
court to grant special leave to
appeal from any decision
emanating from any court
whatsoever but only those
decisions emanating from the
Court of Appeal where the case
originated from a court below
the High Court of Justice,
because of the context of the
provision. See also Brown v.
Attorney-General (Audit Service
Case) 2010 SCGLR 183,
Holding (2).
Applying these principles it
would be noticed from a careful
reading of paragraphs 731 to 732
at pages 199-200 of the
Proposals of the Constitutional
Commission for a Constitution of
Ghana that they related to
discretionary power in delegated
legislation which could affect
the individual. They are as
follows:
“Exercise
of Discretionary Power
731. Experience has shown that
it is practically impossible for
any Parliament however
well-intentioned to carry out
all its legislative duties
properly. It has thus become the
fashion for discretionary power
to be given to Ministers under
Acts of Parliament for certain
things to be done, usually of an
administrative nature. This is
often referred to as delegated
legislation. This system of
delegated legislation can easily
lead to abuse. We fully
appreciate that delegated
legislation by and large are
laid on the table of Parliament
for the scrutiny of members of
Parliament. Experience has
shown that placing such
legislation on the table has
become a mere formality and no
effective check is thereby
placed on delegated legislation.
732. Much harm is done
thereby to the individual
and even though we have
proposed in Chapter Fourteen of
this Memorandum the
establishment of an Ombudsman
who will deal with
administrative complaints we
strongly feel that there must be
some constitutional limitation
on the exercise of discretionary
power and we therefore propose
that when discretionary power
is given to any person or
authority that person or
authority should publish a
statutory instrument which will
set out the principles, the
manner and the mode of the
exercise of the discretionary
power conferred.” (e.s.)
Article
296(c) therefore does not have
the wide scope contended by the
plaintiffs and therefore cannot
affect the issuance of C.I. 78.
In any case how could the State
operate well under its literal
and wide application?
The
Constitution as a Living
Document
It
has always been emphasized that
the Constitution is not an
ordinary document but one that
is not only special in character
but that is not static but
capable of growth and that its
interpretation must move in
accordance with its growth and
development. As I said with the
concurrence of my learned
brethren (Akuffo, Date-Bah,
Owusu, Anin-Yeboah, Gbadegbe and
Akoto-Bamfo, JJ.S.C.) in
Janet Naakaarley Amegatcher v.
The Attorney-General and Others
J1/1/2012, S.C. unreported,
dated 9th May, 2012:
“As laid down
in the celebrated case of
Tuffour v. Attorney-General
(1980) GLR 634 C.A. (sitting as
the Supreme Court) the
Constitution is an organic
document capable of growth to
meet the aspirations and needs
of the Ghanaian society. This
principle has been stated in
very moving terms by Le Dain J
in the Canadian case of R v.
Therens (1985) 1 SCLR 613 at
638-639 and 677 and quoted with
approval by Maxwell C.J. of the
Western Samoa Supreme Court in
Reference by the Head of
State (1989) LRC 671 S.C. at
676.”
At 677 in
that case Maxwell C.J. said:
“A
document such as a Constitution
or a Charter of Rights is not
calcified into an era, but must
be fluent and capable of change
to meet current trends and
social values. It must be
capable of re-evaluation should
the need arise and, as Wood J
says, it must be capable of
adaptation.” (e.s.)
Applying that principle I then
recounted some incidents tending
to show the possible abuse of
the powers of the
Attorney-General under article
88(5) of the Constitution and
concluded as follows:
“Some of
these incidents keep recurring.
Consequently, we consider
that the time has come for a
realistic revisit to article
88(5). Accordingly we come down
on articles 88(5) as follows.
All the constitutionally
established independent bodies
like the Commission on Human
Rights and Administrative
Justice, The Electoral
Commission, etc can sue and be
sued on their own relating to
their functions per counsel of
their choice.
Any person affected by an action
involving the State can upon
application be joined to such an
action, to protect his or its
interest. With regard to the
Judiciary and the Legislature,
where their position on an issue
is in conflict with that of the
Attorney-General they may
proceed on their own by counsel
of their choice. However, any of
these bodies referred to may
access the services of the
Attorney-General if they so
choose.” (e.s.)
Again, article 157(3) of the
Constitution provides as
follows:
“157. (3)
Without prejudice to
clause (2) of this article,
no person sitting in a superior
court for the determination
of any cause or matter shall,
having heard the arguments of
the parties to that cause or
matter and before judgment is
delivered, withdraw as a member
of the court or tribunal, or
as a member of the panel
determining that cause or
matter, nor shall that person
become functus officio is
respect of that cause or matter,
until judgment is delivered.”
(e.s.)
In
Republic v. High Court,
Koforidua; Ex parte Eastern
Regional Development Corporation
(2003-2004) SCGLR 21 at 41-42, I
explained that this provision
was aimed at forestalling
certain past events in our
judicial history in which some
judges wilfully resiled from a
panel after the close of
arguments or even after decision
reached at a conference of the
panel of judges and therefore
its operation ought to be
limited to such a mischief. With
the disappearance of that
mischief in current times judges
no longer feel inhibited by that
provision from recusing
themselves, even after the close
of the parties’ arguments, on
grounds of natural justice, etc
and have not given literal
obeisance to that provision.
In this case,
it will be noticed from the
relevant paragraphs quoted
herein from the Proposals for
the 1969 Constitution concerning
“Discretionary Power” that the
anxiety of the Commission was
that Parliamentarians paid
merely formal attention to
delegated legislation laid
before Parliament and therefore
excesses entailed therein could
easily pass through into harmful
legislation. Today with active
plural party politics,
Parliament vigorously
scrutinizes and fully argues
over delegated legislation and
so the mischief once dreaded by
the 1969 Constitutional
Commission has more or less
disappeared and would therefore
justify a limitation as to the
wide scope of article 296(c).
See also Brownlee v. R
(2001) 5 LRC 180 in which the
High Court of Australia held
that with changing ideas about
jury trial the courts need only
concern themselves about its
essentials and not its pristine
original characteristics.
Constitutional Regulations
It is well settled that the
failure of a constitutional body
to make the necessary rules for
the exercise of a jurisdiction
does not invalidate the exercise
of that jurisdiction, see
Juandoo v. Attorney-General of
Guyana 1971 AC 972, PC
applied in several Ghanaian
cases such as Awuni v. West
African Examinations Council
(2003-2004) SCGLR 471. I view
article 296(c) to be of similar
nature, as for example, article
157(2) which enjoins the Rules
of Court Committee as follows:
“(2) The
Rules of Court Committee
shall, by constitutional
instrument, make rules and
regulations for regulating the
practice and procedure of all
courts in Ghana.” (e.s.)
Conclusion
Article 1(1)
of the Constitution which I view
as the controlling provision of
the entire Constitution provides
as follows:
“1. (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.”
This
provision means that all arms of
government, the Judiciary
inclusive, must exercise their
powers solely with the view to
achieving the welfare of the
sovereign people of Ghana with
regard to any matter. It
therefore follows that since
constituencies have been created
since the 1992 Constitution and
elections smoothly held in
respect of them to the benefit
of the sovereign people of
Ghana, despite the
non-compliance with article
296(c), and assuming the literal
and wide meaning of it contended
for by the plaintiff is correct
how would the welfare of the
sovereign people of Ghana be
served by the invalidation of
the newly created constituencies
in respect of which much
expenditure in terms of time
and other resources have been
incurred, on account of the
procedural prerequisites of
article 296(c) breached by
communis error? Such a
decision would run counter to
article 1(1) aforesaid and ought
to be discountenanced by this
court.
After all, the creation of such
constituencies could still be
challenged on grounds of
constitutionality other than
296(c) thereby resulting in a
win-win situation for the people
of Ghana and our
Constitution.
For all the
foregoing reasons, I also
dismiss the plaintiff’s action.
(SGD) W. A.
ATUGUBA
ACTING CHIEF JUSTICE
(SGD) S. O. A.
ADINYIRA (MRS.)
JUSTICE OF THE SUPREME
COURT
(SGD) R. C.
OWUSU (MS.)
JUSTICE OF THE SUPREME
COURT
(SGD) ANIN -YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) N. S.
GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO
– BAMFO (MRS.)
JUSTICE OF THE
SUPREME COURT
COUNSEL
GODFRED DAME
YEBOAH WITH HIM EVA OTCTHERE,
MIKE OCQUAYE JNR. LED BY NANA
JOE GHARTEY AND EFUA GHARTEY
FOR THE PLAINTIFF.
JAMES
QUARSHIE-IDUN (WITH HIM ANTHONY
DABI) FOR THE 1ST
DEFENANT.
SYLVESTER
WILLIAMS ( PRINCIPAL STATE
ATTORNEY ) FOR THE 2ND
DEFENDANT.
DAVID ANNAN
FOR 1ST AMICUS
CURIAE.
DR. DOMINIC
AYINE AS 2ND AMICUS
CURIAE. |
