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JUDGMENT

EDWARD WIREDU, J.S.C.:

I have been privileged to read before hand the learned opinion of my brother Acquah J.S.C. which is about to be read.

In his usual characteristic delivery he has critically examined, ably analyzed and beautifully nutshelled the facts of this case, and has arrived rightly in my view at a conclusion which tallies with my own stand and understanding of the law in this dispute.

I therefore, write to concur in both his reasoning and conclusion that on the face of the plain and unambiguous language of Article 168 of the 1992 Constitution the authority to appoint chairman and other members of the governing bodies including their chief executives who are also members of such governing bodies, vests in the Commission acting in consultation with the President.

I also endorse his conclusion that it is the Commission which is vested with the right to exercise the powers set out in Article 297(a) of the Constitution in relation to such governing bodies (i.e.) Chairman, Chief Executives and other members of the corporations managing the state owned media.

I therefore hold in my judgment that any appointments made regarding any such individuals in contravention of the above view is void and is devoid of any legal effect.

MRS. J.A. BAMFORD-ADDO, J.S.C.:

I have been privileged to read in advance the opinion of Acquah, J.S.C. which covers all aspects of this matter. I agree with him and I have nothing useful to add.

AMPIAH, J.S.C.:

I have read the leading opinion of my learned brother Acquah J.S.C. and agree with him. I have nothing useful to add.

ADJABENG, J.S.C.:

I have also read the opinion of my learned brother, Acquah, J.S.C., which he is about to read and I agree with his reasoning and conclusion. Indeed, the language used in the constitutional provisions in issue, especially article 168 of our 1992 Constitution, is so plain that I find no need to say anything more than my learned brother has so admirably done. I agree with him and my other brothers and sisters, therefore, that the plaintiff is entitled to the declarations it seeks.

ACQUAH, J.S.C.:

My Lords, the claim of the National Media Commission against the Attorney-General is for

1. A declaration that

(1)  On a true and proper construction of the Constitution of Ghana, 1992 and specifically of articles 168 and 195 (1) thereof the power to appoint "the chairman and other members of the governing bodies of public corporations managing the state-owned media" including the Chief Executives of such public corporations however designated where such Chief Executives are "members of the governing bodies" of such public corporations, is vested exclusively in the National Media Commission acting in consultation with the President and not in the President either acting along or in consultation with any other person or authority;

(2)  The exercise by the President of the power to appoint the Chief Executives of public corporations managing the state owned media who are also members of the governing bodies of such public corporations whether alone or in consultation with any other person or authority is inconsistent with and in contravention of the letter and spirit of articles 162, 167(c) and 168 of the Constitution of the Republic of Ghana 1992 and accordingly all appointments made by the President in purported exercise of such power are null, vo id and of no effect.

(3) An Order setting aside all appointments made by the President of Chief Executives of corporations managing the state-owned media in violation of the letter and spirit of the Constitution of the Republic of Ghana, 1992.

Now what lead to the institution of this action?

The National Media Commission, hereafter referred to as the Commission observed around 1994 and thereafter that the President acting in consultation with certain authorities, was appointing Chairmen, Chief Executives and other members of the governing bodies of public corporations managing state-owned media. The President was alleged to be exercising such powers of appointment under article 195 (1) of the 1992 Constitution. But the Commission, taking the view that they were the proper authority to make such appointments in consultation with the President submitted memoranda to the Attorney-General protesting at the appointments made by the President. They contended, inter alia:

" … that the exercise by the President of a right purportedly derived from article 195(1) to appoint the chief executives who are the most powerful and the most influential of the officers of corporations managing the state-owned media, would not only do violence to the clear language of article 168 of the Constitution but would set at naught and frustrate the Constitutions commitment to guarantee the independence and freedom of the media and to insulate in particular the state-owned media from governmental control since by exercising the power to appoint the chief executives of corporations managing the state-owned media which would necessarily carry with it the right to discipline such chief executives including the right to remove them or suspend them from office, the President would effectively have the management of such corporations under his complete control".

The Commission followed up their memoranda with a meeting in August 1994 with the Attorney-General. At that meeting, the minutes of which were exhibited, the Attorney-General made it clear that he did not share their views  and that the business aspect of these public corporations should be distinguished from the news aspect. He said that the Government had authority under the Constitution to appoint chief executives and the governing bodies of these corporations, while the editors were to be appointed by the board. The Attorney-General went on to ask

"for a second look to be taken at article 195 in relation to the other provisions, Article 167 and 297(a) otherwise the issue would have to be left to the Court"

Thereafter the President made further appointments to the state-owned media. The Government also directed the Acting Director-General of the Ghana Broadcasting Corporation to proceed on indefinite leave. He was later on recalled from leave. And so on 25th January 1996, the Commission issued the instant writ claiming the reliefs set out earlier.

In it's accompanying Statement of Case, the Commission set out a number of appointments made by the President to the various State-owned media - the New Times Corporation, the Ghana New Agency, the Graphic Corporation and the Ghana Broadcasting Corporation. And contended that all these appointments were made in violation of article 168 in particular, and the letter and spirit of the Constitution.

In his Statement of Case, the Attorney-General denied the claim of the Commission and contended that the state-owned media do not form part of the Public Service as set out under articles 190(1) and 195(1) of the Constitution. He then went on:

"3.  The defendant also says that even though the said media are owned by the State as public Corporations, they are established as commercial ventures, falling under article 191(4) of the Constitution for the following reasons:

(i)   The New Times Corporation Act 1971 (Act 363) Section 4, specifically directs the corporation to conduct its affairs on sound commercial basis.

(ii) The Graphic Corporation Instrument, 1971 (LI 709) directs the Corporation by sections 3, 4 and 11, to operate as a Commercial venture whose officers are not public officers.

(iii) The Ghana Broadcasting Corporation is also a commercial venture by virtue of sections 2(1), 8(3) and 11 (2) of the Ghana Broadcasting Corporation Decree 1968 (NLCD 226) and

(iv) The Ghana News Agency Instrument, 1971 (LI. 680) sections 10, 13, 15(2) and 17 indicate that it was set up as a commercial venture whose employees are not public servants.

Consequently, Article 195(1) and 168 of the Constitution cannot be applicable to the appointment of the Chief Executives who are ex officio members of the governing boards of these corporations.

4. Save that the Attorney-General initially formed the wrong opinion that the President could appoint the Managing Directors or General Managers of the said corporations under article 195(1) of the Constitution. Paragraphs 8 and 9 of the Statement of the Defendants' Case are denied."

The Commission attached to his Statement of Case, the appointment letters of Mr. George Aryee as Managing Director of the New Times Corporation, and Messrs Sam Quaicoe and David Anaglate as General Manager and Director General respectively of the Ghana News Agency and the Ghana Broadcasting Corporation, both letters dated 3rd March 1995. Reference was also made in paragraph 13 of the Statement of Case to the appointment of Dr. Kofi Frimpong as the Director General of the Broadcasting Corporation in 1995 by the President. Also exhibited was the letter from the deputy Minister of Information directing the Acting Director-General of GBC to proceed on indefinite leave, and another letter recalling him from leave.

Twelve identical issues for determination were filed by each of the parties. The issues centered on the body with authority to appoint the chief executives, managing directors and members of the governing bodies of the four public corporations in issue, the effect of the President's exercise of appointment of such top officers of these corporations whether the President's appointment of the officers mentioned above did not constitute usurpation of the powers of the Commission, and whether the letters of appointment referred herein were even in conformity with the provisions of the article 195(1) of the Constitution.

Now it is vital to note that this suit was initiated in 1996 following certain appointments made and other actions taken against the chief executives, of public corporations managing state-owned media. In November 1999 when the suit came on for hearing, virtually all these chief executives, were no longer in office. Thus raising the question as to the need to hear the suit.

But there is no indication that the rival views as to who has the authority to appoint such officers, has been resolved. It is for this reason that this opinion is hereby delivered.

Now the contention of the Commission, is that under article 168 of the 1992 Constitution, the authority to appoint chairman and other members of the governing bodies including chief executives who are designated ex-officio members of the governing bodies, is vested in the Commission action in consultation with the President. While the stand of the Attorney-General initially, was that it was the President acting under article 195(1) of the 1992 Constitution. But in paragraph 4 of his Statement of Case, the Attorney-General states:

"Save that the Attorney-General initially formed the wrong opinion that the President could appoint the Managing Directors or General Manages of the said corporations under articles 195(1) of the Constitution, paragraphs 8 and 9 of the Statement of the Defendants Case are denied". (emphasis supplied)

I think it must be the statement of the plaintiff's case and not the defendant's case.

Thereafter, although the authority under which the President makes such appointments is not disclosed, the Attorney-General proceeds in paragraph 5 of his Statement of Case to contend that the President made those appointments "after the requisite consultations which did not need the approval of the plaintiff'". Under which provision of the Constitution then does the President have such power?

The provisions of the 1992 Constitution which call for interpretation, according to the pleadings are articles 162, 167, 168, 190, 195 and 297 (a).

Articles 162, 167 and 168 are parts of the provisions in Chapter 12 dealing with the Freedom and Independence of the Media, while articles 190 and 195 are under Chapter 14 dealing with the Public Service, and finally article 297(a) is under Chapter 26 on miscellaneous.

But to begin with, it is important to remind ourselves that we are dealing with our National Constitution not an ordinary Act of Parliament. It is a document that expresses our sovereign will and embodies our soul. It creates authorities and vests certain powers in them. It gives certain rights to persons as well as bodies of persons. And imposes obligations as much as it confers privileges and powers. All these duties, obligations, powers, privileges and rights must be exercised and enforced not only in accordance with the letter, but also with the spirit of the Constitution. Accordingly in interpreting the Constitution care must be taken to ensure that all the provisions work together as parts of a functioning whole. The parts must fit together logically to form a rational, internally consistent framework. And because the framework has a purpose, the parts are also to work together dynamically, each contributing something towards accomplishing the intended goal. Each provision must therefore be capable of operating without coming into conflict with any other.

Admittedly the public corporations managing state-owned media are the Ghana News Agency established under the Ghana News Agency Instrument, 1971 (LI. 680), the Ghana Broadcasting Corporation established under the Ghana Broadcasting Corporation Decree 1968 (NLCD 226), the Graphic Corporation established under the Graphic Corporation Instrument 1971 (LI. 709), and the New Times Corporation established under the News Times Corporation Act 1971 (Act 363). These enactments clearly show that the corporations were set up not solely to engage in commercial activities but to assist in the implementation and realization of certain government policies and programmes. Thus for example, the objects of the Ghana Broadcasting Corporation as set out in section 2(1) of NLCD 226 are:

(a)  to undertake Sound, Commercial and Television broadcasts.

(b) To prepare in the field of culture, education, information and entertainment programmes reflecting National progress and aspirations;

(c) To broadcast the programmes prepared under sub-sub-paragraph (b) in the main Ghanaian languages and in English and such other foreign languages as the Corporations may determine;

(d) To carry on an external service of sound broadcasting,

(e) To enter into agreement for the utilization of programmes prepared in other countries; and

(f)  To carry on such other activities as are incidental or conducive to the attainment of all or any of the foregoing".

Section 8(3) of NLCD 226 also provides that the Corporation

"May engage in commercial broadcasting through the sale of paid advertisements

scheduled at prescribed spots in its programmes service".

Similarly section 4 of Act 363 permits the New Times Corporation to conduct its affairs on sound commercial basis; sections 3, 4 and 11 of LI. 709 also give such concession to the Graphic Corporation, while sections 10, 13, 15(2) and 17 permit the Ghana New Agency to engage in some commercial activities.  It would therefore be wrong to contend that these public corporations are set up purely as commercial ventures. They have important and crucial national assignments to execute.

Now the Public Service comprises the Civil Service and practically all other organizations, such as public corporations, that are in one way or the other dependent on the government for their financial support and are intended in any way to assist in the implementation of the policies and decisions of the government.

 provided in article 190(1) the list of the organizations forming the Public Service is a long one and includes the Civil Service and other government service, non-commercial public corporations, and any other public corporation established by the Constitution or by Parliament. Article 190(4) further points out that public corporations set up as commercial ventures are not covered by the provisions of Chapter 14 of the 1992 Constitution. Accordingly since the four public corporations  managing state-owned media are permitted to engage in commercial activities, the provisions of Chapter 14 are inapplicable to them.

Consequently as rightly contended by both parties, article 195(1) of the 1992 Constitution cannot govern the appointment of chairmen and other members of their governing bodies including their chief executives.

Under which provision then are these top official appointed?

The provisions on Freedom and Independence of the media set out in Chapter 12 of the 1992 Constitution are far-reaching than any we have had in our previous Constitutions. The 1969 Constitution provided in its article 22(2) thereof:

"Any person responsible for any national medium for the dissemination of any kind of information to the public shall afford equal opportunities and facilities for the representation of opposing or differing views".

The 1979 Constitution sought to secure the freedom of expression in stronger and positive terms in its article 28. And went further to provide for the establishment of Press Commission in its Chapter 22 as a means of ensuring the development of free and responsible press in this country. According to paragraph 291 page 112 of the Memorandum on the Draft Constitution 1978.

"The principal function of the Press Commission shall be to appoint and supervise the operation of the managing or governing boards of the state-owned institutions of the press and media for mass communication."

Now the makers of the 1992 Constitution, in coming out with the provisions on freedom and independence of the media, were driven by two considerations:- the role of the media in a democratic society, and the then state of the media in the country.

In political theory, the media serves as a vehicle for self-expression, as a reflection of public opinion, as an informer of the public, as a participant in the formation of public opinion, and as a watchdog of the government. These roles do not necessarily complement each other and are not all even compatible with one another, yet each is vital for democratic system of government.

Indeed the media is the medium and actor in the process of forming public opinion. For if the citizen is called upon to make a decision on a national issue, he must be fully informed, he has to know and weigh controversial opinions which others have formed. It is the media which promotes this discussion, comments on information, gives orientations, and critically sums up the constantly new formed opinions and demands of society and different groups, makes them the object of public discussion and brings them to the attention of government, so that they have a measuring stick for their actions.

The committee of Experts who made proposals for our 1992 Constitution were certainly not unaware of the above vital roles of the media. Accordingly in their report dated July 1991 presented to the PNDC, they stated in chapter six thereof at pages 84 to 85 thus:

"The mass media, the press and platform are the means to educate the people and make them watchdogs of their liberties inherent in a democracy ... In addition to the role of informing and educating the public and the government on their constitutional rights and duties, the press and the mass-media would have a vital role to play as a watchdog ensuring that the constitution is respected and honoured. The free and responsible press and the mass-media would be expected to expose and denounce abuses and misuse of power, defend human rights and educate, mobilize and articulate public opinion and feelings on national affairs. For the government in power, a free, responsible and independent press and mass-media provides channels to obtain feedback on its performance and also acts as a safety valve by enabling citizens to freely express their views".

On the state of the media at the time of making the Constitution, the Committee of Experts observed in paragraph 188, page 86 of their Report:

"As things stand now, there is direct governmental (ministerial) interference in or control of the operations of the press. Editors and reporters are appointed by the Ministry of Information, and they see themselves as civil servants and feel constrained in carrying out their professional function consistent with the highest professional standards possible. This ministerial power of appointment and dismissal of reporters and governmental interference in media activities have greatly contributed to the erosion of the freedom and independence of the press and media in Ghana".

Accordingly article 162(1) of the 1992 Constitution strikes the keynote by providing:

"162 (1) Freedom and Independence of the Media are hereby guaranteed"

The word 'media' as generally understood and indeed employed here applies to all those forms of mass communication, such as newspapers, sometimes referred to as Print Media or the Press; radio, which is referred to as the Sound Media; and television, which is described as the visual Media, even though it involves the use of sound. Thus by article 162(1) the freedom and Independence of the Press, Sound and Visual media are hereby all guaranteed, whether privately owned or state-owned.

Consequently, the remaining clauses of article 162 proceed to ban:

- censorship of the media,

- the imposition of impediments to the establishment of private press or media;

- the passing of laws requiring licenses as a condition for establishing or operating any of the recognized media for mass communication or information;

- subjection to government control or interference of editors and publishers of newspapers and other institutions of the mass media; or

- the harassment of such persons for their editorial opinions and views or the content of their publications.

Article 166 provides for the establishment of the National Media Commission by

Parliament, while Article 167 sets out five functions of this Commission.

Thereafter article 168 provides:

"The Commission shall appoint the chairman and other members of the governing bodies of public corporations managing the state-owned media in consultation with the President."

The language of the above provision is so plain and unambiguous that it means nothing more than what it says. And further accords with the over-all objective of securing the independence and freedom of those public corporations from governmental control. To interpret it otherwise would be doing violence to the language of the article and further subverting the noble intentions of the framers of the 1992 Constitution.

In the 1979 Constitution, article 193 dealing with the functions of the Press Commission provided as the first function of that Commission.

"The appointment of the Chairman and other members of the governing body of any public corporation established for sound or television broadcasting, the press or other media of mass communication or information".

Obviously I am of the view that the makers of the 1992 Constitution looked upon the responsibility of appointing such chairman and other members of the governing bodies as an important and special task which deserves a whole article to itself. Hence article 168. It singles out that function and gives it special prominence.

Now article 297(a) provides:

"In this Constitution and in any other law —

(a) The power to appoint a person to hold or to act in an office in the public service shall include the power to confirm appointments to exercise disciplinary control over persons holding or acting in any such office and to remove the persons from office".

This means that whoever has the power to appoint a person to an office in the public service, has power to confirm or to withdraw the said appointment or and to take disciplinary measures over him.

In connection with the instant case, it implies that the direction to proceed or recall from leave as given to Mr. David Anaglate in the letters exhibited ought to have been by the appointing authority. And as provided in article 168 the appointing authority is the Commission acting in consultation with the President.

Indeed in the Media Commission Act 1993 (Act 449) enacted by Parliament in pursuance of the provisions of article 166 of the 1992 Constitution which Act received presidential assent on 7th July 1993, it is provided in section 2 (1)(e) thereof that the Commission's functions are, inter alia,

"(e) to appoint in consultation with the President, the chairman and other members of the governing bodies of public corporations managing the state-owned media".

On the plain and unambiguous language of article 168 of the 1992 Constitution, therefore, I am satisfied that the authority to appoint the chairmen and other members of the governing bodies including chief executives who are members of such governing bodies, is the Commission acting in consultation with the President. And it is the same authority which is entitled to exercise the powers set out in article 297 (a) of the 1992 Constitution in relation to such chairmen, chief executives and other members of the governing body of public corporations managing state-owned media.

ATUGUBA, J.S.C.:

I have had the advantage of reading before hand the able judgment of my brother Acquah, J.S.C. and I agree that the plaintiff be granted the declarations it seeks from this court and the consequential order made.

I, however, desire to add a few words of my own. Though the parties have filed separate memoranda of issues, they are virtually the same. Their first identical issue for trial states:

"Whether or not on a true and proper construction of the Constitution of Ghana, 1992 and specifically of articles 168 and 195(1) thereof the power to appoint "the chairman and other members of the governing bodies of public corporations managing the state-owned media" including the Chief Executives of such public corporations howsoever designated where such Chief Executives are "members of the governing bodies" of such public corporations, is vested exclusively in the National Media commission acting in consultation with the President and not in the President either acting alone or in consultation with any other person or authority."

From this it is clear that the parties rely on (1) the constitution generally, (2) specific articles thereof and (3) on a common issue as to whether the power of the National Media Commission to make the said appointments, if it exists, "is vested exclusively" in that body.

Article 168 nakedly and bluntly provides:

"The Commission shall appoint the chairman and other members of the governing bodies of public corporations managing the state-owned media in consultation with the President". (e.s.)

This wording could earn the draftsman an award for drafting clarity. But the defendant contends that the public corporations managing the state-owned media in this case, namely, the Ghana News Agency, the Ghana Broadcasting Corporation, the Graphic Corporation and the New Times Corporation, are "public corporations …established as commercial ventures failing under Article 191(4) of the 1992 Constitution" and are therefore outside the purview of articles 195(1) and 168 with regard "to the appointment of the Chief Executives of the State-owned media."

There is no article 191(4) in the Constitution, but I think the defendant had in mind article 190(4) which provides:

"For the purposes of this article "public corporation" means a public corporation established in accordance with article 192 of this Constitution other than one set up as a commercial venture". Closely connected with that contention is the defendant's question whether the aforementioned public corporations involved in this action "form part of the Public-Services under Articles 190(1) and 195(1) of the Constitution". It is obvious that this latter question is founded on article 190(1)(b) which provides as follows:

"(1) The Public Services of Ghana shall include—

                                     —  X X X—

(b) public corporations other than those set up as commercial ventures".

Article 195(1) provides:

"Subject to the provisions of this Constitution, the power to appoint persons to hold or to act in an office in the public services shall vest in the President acting in accordance with the advice of the governing council of the service concerned given in consultation with the Public Services Commission". (e.s)-

It is clear from this provision that it relates to the power of the President to make appointments "... in the public services". It is article 190 that lists "the public services" of Ghana to which the powers of appointment of the president under the said article 195(1) relate. It is clear therefore that since article 190(1)(b) and (4) excludes public corporations set up as commercial ventures from the purview of public corporations which otherwise are within the purview of "public services" within that article, if the public corporations, namely the Ghana News Agency, the Ghana Broadcasting Corporation, the Graphic Corporation and the New Times Corporation, involved in this action are ones "set up as commercial ventures", then they fall outside the powers of the President under article 195(1) but not the powers of the National Media Commission because the latter's powers are not tied to the expression "public services." Article 190(4) clearly shows that the definition of "public corporation" therein is limited to that article. I do not think, though, that much turns on the question whether the public corporations involved in this action are public corporations "set up as commercial ventures". If they are, they clearly fall out of the purview of the President's powers of appointment under article 195(1), aforesaid. But if they are not, the President will still lack the power to appoint in respect of their chairmen and other members of their governing bodies. This is because article 195(1) opens with the phrase "Subject to the provisions of this Constitution …."  The import of this phrase was amply considered in EDUSEI VS. ATTORNEY GENERAL (1996-97) S.C.G.L. R1 as later reviewed. See EDUSEI VS. ATTORNEY GENERAL to be reported in (1998-99) SCGLR.

The majority in both the original and Review decisions held that the effect of those words was to exclude the Supreme Court from the enforcement of the fundamental human rights. The provision in question was article 130(1) of the Constitution which provides:

"Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in -

(a)   all matters relating to the enforcement or interpretation of this Constitution;"

By similar reasoning relating to Article 140(1) and the question of the jurisdiction of the High Court in chieftaincy matters, it was held in GHANA BAR ASSOCIATION VS. ATTORNEY-GENERAL (1995) 1 GSCJ II that the High Court lacks jurisdiction in chieftaincy matters. Whether one agrees with that approach with regard to the phrase "subject to..." on the facts of those cases, is immaterial in the circumstances of this case. In C & J CLARK LTD. vs. INLAND REVENUE COMRS (1973) 2 ALL ER 513, Megarry J. at p.520 said:

"In my judgment, the phrase 'subject to' is a simple provision which merely subjects the provisions of the subject subsection to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision. "

Applying this test, it is clear that since the powers of the President under article 195(1) to make appointments in the public services are to be exercised "in accordance with the advice of the governing council of the service concerned given in consultation with the Public Services Commission" but the power of the plaintiff, the National Media Commission, under article 168 is to be exercised "in consultation with the President", the two sets of powers conflict and therefore since article 195(1) subjects itself to the other provisions of the Constitution inclusive of article 168, then the latter prevails over the former. It is therefore clear that as between the President under article 195(1) and the Plaintiff Commission under article 168, of the Constitution, the plaintiff is the proper appointing authority in respect of "the chairman and other members of the governing bodies of public corporations managing the state-owned media in consultation with the President"

Is the plaintiff's power under Article 168 exclusive? In the Edusei and Ghana Bar Association cases supra it was further held that by reason of the phrase 'subject to' the powers of the High Court in the enforcement of fundamental human rights and of the chieftaincy tribunals in chieftaincy matters, were exclusive. In any case, the Report of the Committee of Experts (Constitution) on Proposals for a Draft Constitution of Ghana dated July 31 1991 shows quite clearly that the plaintiffs powers under article 168 of the Constitution were meant to be exclusive. At page 86 appears the following:

"188  …… ministerial power of appointment and dismissal of reporters and governmental interference in media activities have greatly contributed to the erosion of the freedom and independence of the press and media in Ghana. (e.s.)

189. To reverse this erosion, and ensure the growth and strengthening of press and media freedom and independence in the Fourth Republic, the following are proposed:

1. That an independent body like the Press Commission provided for in the Third Republican Constitution (Chapter 22) must be set up. Since this body would handle matters related to both the press and electronic media, it should be called MEDIA COMMISSION.

2. The Media Commission is to perform the functions currently discharged by the Minister of Information as far as the public sector press is concerned. The functions of the Commission are to include the appointment of members of the governing body of any public corporation established for sound or television broadcasting, the press or other media of mass communication." (e.s.)

It is significant that the said Committee of Experts also stated at p.168 of their Report as follows:

"365. The Committee's attention was drawn to a comprehensive programme of the restructuring of the public services that had been under way for several years. Some of these changes constitute radical departures from time — honoured structures and procedures in the Ghana Public Services.

366. We were further advised that the process of reorganization had not been completed and that certain structures and procedures were still evolving. In view of the wide-ranging nature of these reforms, the fluid state of the restructuring exercise and the severe time constraints under which we laboured; we were not in a position to make a definitive evaluation of the structures of the Public Services. The Committee is therefore unable to make concrete detailed proposals in this regard beyond the following general principles:

1. The principal objective of any major restructuring should be to ensure a viable, efficient and productive public administration. All changes should therefore be evaluated against this overriding criterion.

2. In the light of the foregoing, the question may be raised whether certain aspects of the restructuring such as ......

(c) the proliferation of appointing authorities in the Public Services, would all comply with the above guiding principle."

Is this concern of the Committee of Experts, consistent with any notion of plurality of appointing authorities in respect of the "chairman and other members of the governing bodies of public corporations managing the state-owned media" in Article 168 of the Constitution? I  should definitely think not.

It is pertinent that it is against the above-stated background that the Committee of Experts at page 257 of their Report made the draft provision for the appointing power of the plaintiff Commission in almost the ipssissima verba article 168 of the Constitution. Thereat, the following is stated under Appendix B:

"B.   THE NATIONAL MEDIA COMMISSION"

1. There shall be a National Media Commission which shall be non-partisan and autonomous and shall have the following functions: .......

(d) To appoint the chairman and other members of the governing bodies of public corporations managing the state-owned media." (e.s)

The above-stated excerpts from the Committee of Experts Report show quite clearly quo animo the provision in Article 168 of the Constitution was therein inserted and leaves no doubt that the power therein conferred was meant to be exclusively for the plaintiff.

For these reasons, other apparently competing provisions of the Constitution such as Articles 58(1) and 70(1) cannot prejudice the exclusive power of the plaintiff under Article 168 aforesaid.

Article 58(1) provides:

"The executive authority of Ghana shall vest in the President and shall be exercised in accordance with the provisions of this Constitution." (e.s)

In my view this provision is to the same effect as if it had opened with the phrase "Subject to the provisions of this Constitution...." I have already stated the effect of that phrase.

Article 70(1) provides:

"The President shall, acting in consultation with the Council of State, appoint -

(d) the chairman and other members of  —

(iii) the governing bodies of public corporations."

It will be seen that this provision relates to chairmen and other members of the governing bodies of public corporations generally. On the other hand article 168 is solely and specially concerned with the appointment of the chairmen and other members of "the governing bodies of public corporations managing the state-owned media."  It is obvious that the words "managing the state-owned media" which are added to this provision but which are absent from article 70(1), were not therein inserted for nothing. In LAGUNJU vs. OLUBADAN-IN-COUNCIL (1947) 12 W.A.C.A. 233 at 236 the court said:

" …… in the words of Halsburys Laws of England, 2nd Edition, Vol. XXI, pages 501-2:

"It may be presumed: (1) that words are not used in a statute without a meaning and so effect must be given, if possible, to all the words used, for the legislature is deemed not to waste its words or say anything in vain". (e.s.)

That being so the provisions of articles 70(1) and 168 cannot be taken to confer concurrent appointing powers on the President and the plaintiff Commission, respectively, since that will denude the said additional concluding words of article 168 of the additional effect intended for them. It is also well-settled, as stated by Aikins J.S.C. in New Patriotic Party vs. President Rawlings & Attorney-General, Supreme Court, Writ No. 15/93 3 May 1994 that:

"The law with respect to general and particular or specific enactments is trite and is to the effect that where a particular or specific enactment and a general enactment appear in the same statute, and the general enactment, taken in its most comprehensive sense, would override the specific enactment, the specific enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. see Pretty v. Solly (1859) 26 Beau 606 at 610. This special provision stands as an exceptional proviso upon the general. It is only where it appears from a consideration of the general enactment in the light of prevailing circumstances that Parliament or in the case of a Constitution, its framers, intended only to establish a rule of universal application that the special provision must give way thereto...." (e.s.)

In view of what I extracted earlier from the Report of the Committee of Experts it clearly cannot be said that the committee which intended to suppress the mischief of governmental interference with the media and also depreciated 'the proliferation of appointing authorities in the public services," intended to prejudice the exclusive effect of article 168 of the Constitution.

In conclusion I hold that whether on the application of traditional common law rules of construction or on the broader, purposive and non-technical approach advocated for the construction of a constitution, the plaintiff,s action succeeds in the terms earlier indicated.

MS. AKUFFO J.S.C.:

 I also agree with my brother Acquah, J.S.C.

COUNSEL

Mr. Peter Adjetey with Nutifafa Kuenyehia for the Plaintiff and Mr. Frank Abaidoo.

Mr. Afrifa Gyasi, Chief State Attorney for Attorney-General.

Irene Wuaku.