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Negligence -
Accident. - Personal injuries -
Vicarious liability - Injuries
suffered - Assessment of
incapacity - Special and
General damages – Pecuniary and
non-pecuniary loss - Insurance -
Road worthy certificate –
Unlicensed driver effect of –
Whether
or not defendant was
negligently liable because his
truck, at the time of the
accident had no valid document -
Whether or not the driver in
charge of the vehicle on the day
of the accident had no license -
Whether or not the quantum of
damages awarded by the Court of
Appeal was excessive - Whether
or not the awards are not
supported by the totality of the
evidence placed before the trial
court - Whether or not
Respondent had a contract with
the Appellant for him to be held
liable vicariously - Whether or
not the judgment was against the
weight of evidence -
Sections
94 and 112 - Road Traffic Act,
2004 (Act 683) - Section 3 -
The Motor Vehicles (Third Party
Insurance) Act, 1958 (NO 42) -
Order
16 Rule 7(1) - High Court Civil
Procedure Rules, 2004, C.I. 47
HEADNOTES
The events,
giving rise to this case,
started on 28th
April, 2009. The plaintiff, a
timber merchant of 39 years at
the time of the incident acting
through his friend and business
partner hired the defendant’s
truck to cart his timber logs
from Diaso near Dunkwa to Mim in
the then Brong Ahafo Region. On
reaching a place called Kwabena
Kumah, the vehicle was involved
in an accident. The plaintiff
and the driver of the vehicle
sustained serious injuries and
were sent to Goaso Government
Hospital. Because of the
seriousness of the injuries
suffered, the plaintiff was
later transferred to the Komfo
Anokye Teaching Hospital in
Kumasi for further treatment
where he received intensive care
for four months before being
discharged to continue his
treatment as an outpatient. The
plaintiff on 20th
June, 2012, after seeking
extension of time within which
to file a writ sued the
defendant, owner of the vehicle
for the sum of Gh¢400,000.00,
special and general damages for
the negligence of defendant’s
driver, servant and employee
resulting in the injuries
suffered in the accident.
According to the plaintiff, the
vehicle was not insured, did not
have a road worthiness
certificate and the driver was
also not licensed by law to
drive the vehicle at the
material time. The defendant did
not deny the fact that he owned
the vehicle and that the road
worthiness certificate and
insurance had both expired. The
defendant, however, denied the
fact that the driver in control
of the vehicle at the material
time was his driver or servant.
According to the defendant, one
Kudjar Sumiala rented the timber
truck for two days and gave him
his driver to assist him with
the carting of the logs.
However, the said Kudjar Sumiala
ended up using the truck for
four days without his knowledge,
consent or approval The
trial court found that the
accident was not caused by the
negligent driving of the servant
of the defendant because the
evidence of the police was that
the vehicle developed a fault
and fell down. The judge,
however, held that by permitting
a vehicle to ply the road
without valid documentation
i.e., road worthiness
certificate and insurance as
well as authorising an
unlicensed driver to drive the
truck, the defendant should be
held vicariously liable for the
plaintiff’s claim Dissatisfied
with the award of damages by the
trial court, the plaintiff
appealed to the Court of Appeal
who reversed the award on the
assessment of damages made by
the trial judge, The defendant
dissatisfied with the award by
the Court of Appeal and has
appealed to this court
HELD
We, therefore, exercise our
powers by invoking Order 16, r.
7 of C.I. 47 and amend the claim
in the indorsement to the Writ
of Summons filed on 20th
June, 2012 from GH¢
400,000.00 to GH¢
622,600.00. Since ground
7 on costs was not argued, the
conclusion is that it has been
abandoned. In the result, the
appeal lacks merit and is
dismissed in its entirety.
We vary the award of
pecuniary and non-pecuniary
damages awarded by the Court of
Appeal from GH¢150,000.00 to GH¢
622,600.00. The plaintiff shall
recover the sum of GH¢
622,600.00 from the defendant.
STATUTES
REFERRED TO IN JUDGMENT
Road Traffic
Act, 2004 (Act 683)
Road Traffic
Regulations, 2012, L.I. 2180
The Motor
Vehicles (Third Party Insurance)
Act, 1958 (NO 42).
High Court Civil Procedure
Rules, 2004, C.I. 47
High Court Civil Procedure
Rules, LN 120 A.
CASES
REFERRED TO IN JUDGMENT
Bradford v
Pickels [1895] AC 587
Standard Chartered Bank (Ghana)
Ltd v Nelson [1998-99] SCGLR 810
Zik’s Press
Ltd v Ikoku (1951) 13 WACA 188
at 189
Frabina Ltd v Shell Ghana Ltd,
[2011] SCGLR 429
H. West & Son, Ltd. v Shephard
[1963] 2 All E.R 625
Delmas Agency
Ltd v Food Distributors
International Limited
[2007-2008] SCGLR 748
Phillips v. South Western
Railway Co. (1879) 4 Q.B.D. 406
Roach v. Yates [1938] 1 K.B. 256
Amakom Sawmill & Co. v Mansah
[1963] 1 GLR 368,
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
AMEGATCHER,
JSC:-
COUNSEL
CHARLES
AGBANU WITH NANA BOSOMPEMAA
ANTWI FOR THE PLAINTIFF/
APPELLANT/RESPONDENT.
IBRAHIM ADAMS
WITH CHARLES LESBAN FOR THE
DEFENDANT/ RESPONDENT/APPELLANT.
AMEGATCHER, JSC:-
This writ is invoking our
original jurisdiction under
articles 2(1) and 130(1)(a) of
the 1992
Constitution. The writ was
originally issued against the
Attorney-General and Martin
Alamisi Burns Kaiser Amidu
(hereafter referred to as Martin
Amidu), the incumbent Special
Prosecutor. By a ruling dated 5th
February, 2019, this court
struck out Martin Amidu as 2nd
defendant relying on article
88(5) of the 1992 Constitution.
The writ now is against the
Attorney-General as the sole
defendant.
FACTS:
Following the passage by
Parliament of the Office of the
Special Prosecutor Act, 2017,
(Act 959), the Attorney-General
acting in accordance with the
provisions of Section 13(3) of
the Act nominated for
appointment by the President,
Martin Amidu as the Special
Prosecutor subject to the
approval of Parliament. The
President accepted the
nomination and forwarded the
name to Parliament for approval.
Parliament vetted and approved
the nominee, and he was sworn
into office as the first
substantive Special Prosecutor
in February 2018. The curriculum
vitae submitted by Martin Amidu
to Parliament for the vetting
stated his date of birth as 6th
September, 1951. This implies
that at the time of his
nomination, vetting, approval by
Parliament and swearing in by
the President, Martin Amidu had
attained the age of 66 years.
The plaintiff, a former Deputy
Attorney-General & Minister of
Justice and Member of Parliament
for Bolgatanga East describing
himself as a citizen of Ghana
seeking the interpretation and
enforcement of the Constitution
issued this writ against the
Attorney-General for the
following
reliefs:
(a)
A declaration that by a true and
proper interpretation of
Articles
190(1)(d), 199(1), 199(4), and
295 of the 1992 Constitution,
the
retirement age of all holders of
public offices created
pursuant to Article 190(1)(d) is
sixty (60) years, anyhow and not
beyond sixty-five (65) years;
(b)
A declaration that by a true and
proper interpretation of
Articles 190(1)(d) and 199(4) of
the 1992 Constitution,
no person
above the age of 65 years is
eligible for employment in any
public office created under
Article 190(1)(d);
(c)
A declaration that by reason of
his age, (66 years), Mr Martin
Alamisi Burns Kaiser Amidu
is not
qualified or eligible to be
nominated by Parliament as the
Special Prosecutor under
Section 13(3) of the Office of
the Special Prosecutor Act, 2017
(Act 959);
(d)
A declaration that by reason of
his age, (66 years), Mr Martin
Alamisi Burns Kaiser Amidu is
not qualified or eligible to be
approved by Parliament as the
Special Prosecutor under Section
13(3) of the Office of the
Special Prosecutor Act, 2017
(Act 959);
(e)
A declaration that by reason of
his age, (66 years), Mr Martin
Alamisi Burns Kaiser Amidu is
not qualified or eligible to be
appointed by His Excellency the
President of the Republic as the
Special Prosecutor under Section
13(3) of the Office of the
Special Prosecutor Act, 2017
(Act 959);
(f)
A declaration that any purported
nomination by the
Attorney-General or approval by
Parliament or appointment by His
Excellency the President of the
Republic of Martin Alamisi Burns
Kaiser Amidu as the Special
Prosecutor under Section 13(3),
of the Office of the Special
Prosecutor Act, 2017 (Act 959),
is
unconstitutional , and,
therefore, null and void;
(g)
A declaration that by a true and
proper interpretation of
Articles
190(1)(d), 195(1) and 295 of the
1992 Constitution, Sections
13(1) and 16(2) of the Office of
the Special Prosecutor Act, 2017
(Act 959) are inconsistent with
and /or contravene Article
195(1) of the 1992 Constitution
and are, therefore,
unconstitutional, null and void;
(h)
An order striking out the said
Sections 13(1) and 16(2) of the
Office of the Special Prosecutor
Act, 2017 (Act 959) as
unconstitutional, null and void;
(i)
An order annulling the
nomination by the
Attorney-General, approval by
Parliament and appointment by
His Excellency the President of
the Republic of Martin Alamisi
Kaiser Burns Amidu as the
Special Prosecutor under Section
13(3) of the Office of the
Special Prosecutor Act 2017
(959).
After the exchange of Statements
of Case between the plaintiff
and defendant, the parties
agreed on the following
Memorandum of Issues:
a)
Whether or not the Constitution
prescribes one compulsory
retirement age of sixty (60)
years for all classes of public
officers;
b)
Whether or not by a true and
proper interpretation of
Articles 190(1)(d), 199(1),
199(4), and 295 of the 1992
Constitution, the retirement age
of all holders of public offices
created pursuant to Article
190(1)(d) is sixty (60) years,
anyhow not beyond sixty-five
(65) years;
c)
Whether or not parliament has
residual legislative powers to
prescribe for the appointment of
a specific public office under a
specific Act of Parliament;
d)
Whether or not by a true and
proper interpretation of
Articles 190(1)(d) and 199(4) of
the 1992 Constitution, no person
above the age of 65 years is
eligible for employment,
including post-retirement
employment, in any public office
created under the Article
190(1)(d);
e)
Whether or not by reason of his
age, (66 years), Mr Martin
Alamisi Burns Kaiser Amidu is
qualified or eligible to be
nominated, appointed and
approved as the Special
Prosecutor under Section 13(3)
of the Office of the Special
Prosecutor Act, 2017 (Act 959)
and to assume and act in an
office created under Article
190(1);
f)
Whether or not by a true and
proper interpretation of
Articles 190(1)(d), 195(1) and
295 of the 1992 Constitution,
Sections 13(1) and 16(2) of the
Office of the Special
Prosecutor, 2017 (Act 959) are
inconsistent with and/or
contravene Article 195(1) of the
1992 Constitution.
It is the case of the plaintiff
that Act 959 makes the position
of the Special Prosecutor a
public officer within the
definition of Articles 295 and
199(1) who is expected to retire
compulsorily from the public
service at the age of 60 or at
most 65 years. Therefore, by
reason of his age, Martin Amidu
is not qualified under the
Constitution to be nominated by
the Attorney-General, appointed
by the President of the
Republic, approved by Parliament
and sworn in as the Special
Prosecutor. By
nominating, appointing and
approving Martin Amidu as the
Special Prosecutor, the Attorney
General, the President and
Parliament have all violated
Article 199(1) of the 1992
Constitution and, therefore, his
nomination, appointment and
approval as the Special
Prosecutor be declared null and
void and of no effect.
Having enumerated above the
basis upon which the plaintiff
brought this writ our role now
is to examine the issues agreed
to by the parties with a view to
making a determination on the
constitutionality of the
appointment of the first Special
Prosecutor.
ISSUES (a), (b) & (d)
ISSUE (a) deals with whether or
not the Constitution prescribes
one compulsory retirement age of
sixty (60) years for all classes
of public officers
ISSUE (b) calls upon the court
to determine whether or not by a
true and proper interpretation
of articles 190(1)(d), 199(1),
199(4), and 295 of the 1992
Constitution, the retirement age
of all holders of public offices
created pursuant to article
190(1)(d) is sixty (60) years,
anyhow not beyond sixty-five
(65) years; and
ISSUE (d) invites our opinion on
whether or not by a true and
proper interpretation of
articles 190(1)(d) and 199(4) of
the 1992 Constitution, no person
above the age of 65 years is
eligible for employment,
including
post-retirement employment,
in any public office created
under article 190(1)(d);
Issues (a), (b) and (d) appear
to us to be inviting us to deal
with the interpretation of the
same articles in the
Constitution. We have,
therefore, decided to deal with
the three together.
We shall commence our assignment
by summarising the basis forming
the reliefs sought by the
plaintiff. The thrust of the
plaintiff’s case is that article
199(1) prescribes one retirement
age i.e., sixty (60) years for
all classes of public officers
in the public service created by
Parliament pursuant to article
190(1)(d). Further, the
plaintiff argues that subject to
constitutional provisions
relating to certain specific
public officers, the compulsory
retirement age for public
officers serving in the public
services provided for in article
190(1)(d) of the Constitution is
sixty (60) years. It is also the
case of the plaintiff that in
view of article 190(1)(d),
199(1) and 199(4),
for a public servant to be
eligible for an extension of his
retirement age under article
199(4), he must have already
been in employment in the public
service at the time he attained
the age of 60 years.
The search for the original
intent of the framers on the
articles in contention will take
us into our constitutional
history. This will assist us
comprehend the rationale behind
the retirement age of all public
office holders and the scope of
its applicability. We would at
this stage analyse some of the
reports which informed the
promulgation of our
Constitutions starting from
1968.
In the memorandum on the
proposals for a constitution for
Ghana published in 1968 which
gave birth to the 1969
Constitution, the Constitutional
Commission recommended at
paragraph 616 the establishment
of an independent Public
Services Commission to make
appointments to all levels of
the public services. The
Commission also recommended that
the President must have power to
make appointments as well as
regulations governing the
appointments to certain critical
public offices on the advice of
the Council of State. This is
what paragraph 335-336 of the
report stated:
“335. In appointing the
following public officers the
President acts not on the advice
of the Prime Minister or the
Cabinet but in consultation with
the Council of State: the
Auditor-General; the Chairman
and other members of the Council
on Higher Education; the
Governor and other members of
the Bank of Ghana; a sole
Commissioner or the Chairman and
other members of any Commission
established by the proposed
Constitution; the Ombudsman; and
the Chairman and other members
of the governing body of any
corporation established by an
Act of Parliament, a Statutory
Instrument, or out of public
funds for wireless broadcasting,
television, the press or other
media for mass communication and
information.
336. Similarly he must consult
with the Council of State in
making regulations governing the
appointment of public officials
he has power to appoint;”
The views expressed above on the
need for the President to
appoint certain key public
office holders into the public
offices was re-echoed in the
Proposals of the Constitutional
Commission for a Constitution
for the Establishment of a
Transitional (Interim) National
Government for Ghana, 1978.
Paragraph 219 of the report
recommended that to guarantee
the independence and integrity
of the Public Services and
remove the Public Services from
direct or indirect control of
the Executive, a Public Services
Commission should be retained as
the principal controlling
authority of the Public Services
with the responsibility and
power to advise on the
appointment of persons to hold
offices in the Public Services
except those cases where the
power to advise is entrusted by
the Constitution to another
authority. The public offices
whose appointment had been
entrusted to some other
authority outside the Public
Services Commission were
captured in paragraphs 123-124
of the report in the following
words:
“123. One major limitation on
the President’s power is in the
area of appointments to public
offices. We concede and accept
that the President should have
some freedom in appointing the
team with which to formulate and
implement his programmes and
policies. We feel, however, that
this discretion should not be
untrammelled, particularly in
the appointment of persons to
perform, certain sensitive
functions in which a degree of
impartiality and independence
from the executive is considered
essential. We, therefore,
propose that in the case of a
number of important offices the
President shall only make
appointments in accordance with
the advice of a Council of State
which, as we shall explain
later, is to be an independent
body of eminent citizens of
proven merit and achievement. In
the case of ministerial
appointments, the President’s
nominations are subject to
approval by Parliament.
124. The system we propose does
not oblige the President to work
with persons he does not approve
of or to entrust important State
functions to persons who he may
not consider to be fit or
capable for such functions. What
our system does is to require
that suitability of persons to
be appointed to important State
offices shall be passed upon by
another authority other than the
President. It is hoped that the
President, aware of this extra
test, will nominate and
designate persons whose
suitability and probity are such
that they can expect to pass the
additional scrutiny.”
The views expressed by the 1968
and 1978 constitutional
proposals contemplated two main
appointing bodies or authorities
making appointments into public
office. One is an independent
body called the Public Services
Commission which the President
will either consult or delegate
his appointing functions of
public officers into the public
service. The other authority is
by the President acting in
consultation with or on the
advice of a body like the
Council of State. Parliament is
another authority the President
may forward certain category of
his appointees to for their
approval.
These views were accepted for
promulgation in articles 48, 49,
52, 140 and 141 of the 1969
Constitution, and articles 57,
58, 157 and 158 of the 1979
Constitution. The views and
provisions referred to above
were again adopted by the
Committee of Experts appointed
in 1991 to propose a
constitution for Ghana. The
adoption resulted in the
promulgation of articles 70, 71,
190 and 195 of the 1992
Constitution.
Chapter fourteen (14) of the
1992 Constitution headed “The
Public Services” captured
article 190(1) which listed the
Public Services of Ghana to
include:
(a) the Civil Service,
the Judicial Service,
the Audit Service,
the Education Service,
the Prisons Service,
the Parliamentary Service,
the Health Service,
the Statistical Service,
the National Fire Service,
the Customs, Excise and
Preventive Service,
the Internal Revenue Service,
the Police Service,
the Immigration Service; and
the Legal Service;
(b) public corporations other
than those set up as commercial
ventures;
(c) public services established
by this Constitution; and
(d) such other public services
as Parliament may by law
prescribe.
Article 195 makes provision for
the appointment of persons into
the public services. It
provides:
195 (1) 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.
(2) The President may, subject
to such conditions as he may
think fit, delegate some of his
functions under this article by
directions in writing to the
governing council concerned or
to a committee of the council or
to any member of that governing
council or to any public
officer.
(3) The power to appoint persons
to hold or act in an office in a
body of higher education,
research or professional
training, shall vest in the
council or other governing body
of that institution or body.
Public officers who succeed in
gaining appointments into the
public services are then
required by article 199(1) to
compulsorily retire from the
public services at the age of
sixty (60) years after which a
person so retired where the
exigencies of the service
require, may be eligible for
contract at two (2) yearly
intervals up to a maximum of
five (5) years. This is what
article 199(1) & (4) states:
199 (1) A public officer shall,
except as otherwise provided in
this Constitution, retire from
the public service on attaining
the age of sixty years.
(4) Notwithstanding clause (1)
of this article, a public
officer who has retired from the
public service after attaining
the age of sixty years may,
where the exigencies of the
service require, be engaged for
a limited period of not more
than two years at a time but not
exceeding five years in all and
upon such other terms and
conditions as the appointing
authority shall determine.”
We believe the compulsory
retirement age stated in article
199(1) must have prompted the
claim by the plaintiff and his
argument that all public
officers have one retiring age
i.e., 60 years.
What, then, is the scope of the
retirement age stated in article
199(1)? The starting point would
be the right approach to
interpretation of constitutional
documents such as ours. Over the
years, this court has in several
decisions adeptly dealt with the
proper approach to interpreting
national Constitutions. These
decisions have now properly
become trite law in
interpretation of written
constitutions. We will, however,
draw from the rich storehouse of
a few of these decisions to
guide us in our deliberations.
There is no doubt that the locus
classicus in constitutional
interpretation in Ghana is the
case of
Tuffuor v Attorney-General
[1980] GLR 637. This
case appears to have been
flogged by our courts in almost
all constitutional cases since
1980. This may be so but the
principle behind the case and
the relevance to our
constitutional evolution cannot
be whittled away by the passage
of time. In reality, the case
could also be described as
Ghana’s version of
Marbury v Madison [5 US] 137
(1803) 1 Cranch 137
which, for over 200 years, is
still quoted as the foundation
of modern judicial review in the
United States of America. We
classify the Tuffuor case
as a watershed in delimiting
checks and balances and setting
the pace for the three arms of
state to co-exist within the
principles of separation of
powers entrenched in our
constitutions. As such, it is an
indispensable authority on any
matter involving the
interpretation of our written
constitution. On that score, our
starting point towards a
purposive approach to this
Constitution will lead us to
that locus classicus.
Explaining how a written
constitution should be
construed, Sowah JSC (as he then
was) at 647 laid the
foundation as follows:
“A written Constitution such as
ours is not an ordinary Act of
Parliament. It embodies the will
of a people. It also mirrors
their history. Account,
therefore, needs to be taken of
it as a landmark in a people's
search for progress. It contains
within it their aspirations and
their hopes for a better and
fuller life. The Constitution
has its letter of the law.
Equally, the Constitution has
its spirit. It is the
fountain-head for the authority
which each of the three arms of
government possesses and
exercises. It is a source of
strength. It is a source of
power.…..Its language,
therefore, must be considered as
if it were a living organism
capable of growth and
development. Indeed, it is a
living organism capable of
growth and development, as the
body politic of Ghana itself is
capable of growth and
development. A broad and liberal
spirit is required for its
interpretation. It does not
admit of a narrow
interpretation. A doctrinaire
approach to interpretation would
not do. We must take account of
its principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time. And so,
we must take cognisance of the
age-old fundamental principle of
constitutional construction
which gives effect to the intent
of the framers of this organic
law. Every word has an effect.
Every part must be given
effect.”
Later, in
New Patriotic Party v
Attorney-General [1997-98] 1 GLR
378
at 386-387,
Bamford Addo JSC laid her own
emphasis for interpreting
written constitutions as follows:
“Interpreting a Constitution is
not the same as interpreting an
ordinary statute. The
Constitution is a political and
meaningful document which
requires a broad and liberal
interpretation; its voice
carries higher than that of an
ordinary legislation and its
pronouncements must be given as
full and as wide effect as
possible. Some constitutional
rules of interpretation have
been laid down and applied in
this country, which requires
that the provisions of the
Constitution be given a liberal
and broad meaning, rather than a
narrow or doctrinaire one, to
suit the changing social and
political development of the
nation.”
She went on:
‘This rule of interpretation has
been applied to many
constitutional cases by the
Supreme Court: see
Republic
v High Court, Accra, Ex parte
Adjei in [1984-86] 2 GLR
511 at 518-519, SC where
Sowah CJ stated again that:
“the narrow rules of
construction applicable in cases
of contracts, wills, statutes
and ordinary legislation may or
may not be adequate when it
comes to the interpretation of a
Constitution or law intended to
govern the body politic ... Our
interpretation should therefore
match the hopes and aspirations
of our society and our
predominant consideration is to
make the administration of
justice work."
Another dimension of the broad
and liberal interpretation was
expounded by Francois JSC in
New Patriotic Party Vrs
Attorney-General [1993-1994] 2
GLR 35,
(31st December case)
where he opined:
“A constitutional document
must be interpreted sui generis,
to allow the written word and
the spirit that animates it, to
exist in perfect harmony. It is
to be interpreted according to
principles suitable to its
peculiar character and not
necessarily according to the
ordinary rules and presumptions
of statutory interpretation.”
Again, in
Kuenyahia
& Ors v Archer [1993-1994] 2 GLR
525,
Adade JSC stated that:
“We are expounding a
constitution, not a penal code,
a lot of flexibility is called
for.”
These cases have established and
laid bare the jurisprudence
which the court has subscribed
to in the past. Constitutional
documents are not ordinary
regulations or Acts of
Parliament. Therefore, when
interpreting written
constitutions, the letter,
spirit, history, hopes and
aspirations of the people must
all come to play in the mind of
the court in extracting the
intention behind the document.
Equally, a literal or narrow
view of the document will not
work. Rather, a broad and
liberal approach will help to
marshal all the forces at the
disposal of the court to arrive
at a just and most convenient
route to drive the document as a
living framework.
In interpreting the articles
listed in the three issues
above, we have identified the
phrases “public officer’
retiring from the “public
service” very critical to a
determination of the class of
people contemplated in article
199(1). We will define and
explain these terminologies in
the course of this judgment. Let
us emphasise again that in
interpreting a written
constitution such as ours, the
document containing the various
articles must be read as a whole
to sieve the intention of the
framers. It will be myopic on
our part to just concentrate on
the solitary article focused on
by the plaintiff to make a
determination in this matter. A
step like this will create
retrogression in our forward
march towards progress. Thus,
Acquah JSC in
National Media Commission v
Attorney-General [2000] SCGLR 1
echoed the significance of
the holistic approach to
constitutions at page 11
as follows:
“But to begin with, it is
important to remind ourselves
that we are dealing with our
national Constitution, 1992 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,
1992. Accordingly, in
interpreting the Constitution,
1992 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”.
Applying the principles
enunciated above to the current
case, we see our role to guard
against limiting ourselves to
the articles referred to in the
issues raised by the parties but
to delve into the entire 1992
Constitution, and identify
whether the letter, spirit, core
values and purpose of the
Constitution can justify the
case put forward by the
plaintiff. In doing so, we do
not intend to read the
provisions piecemeal. For where
a constitutional document is
read piecemeal, it is taken out
of context and its meaning lost,
resulting in a conclusion
unintended by the framers.
Reading the Constitution as a
whole, we are convinced that the
framers contemplated a situation
where all persons appointed to
serve the nation in one capacity
or the other and paid out of
public funds charged on the
consolidated fund are deemed to
be public officers holding
public office. Some of these
public office holders are
engaged in various work within
the public services while others
function as administrative,
political or legal office
holders.
Thus, the term “public
office”
is defined in
article 295(1) of the
Constitution as follows:
“includes an office the
emoluments attached to which are
paid directly from the
consolidated Fund or directly
out of moneys provided by
Parliament and an office in a
public corporation established
entirely out of public funds or
moneys provided by Parliament;”
Then “Public officer” is
not defined in the Constitution
but in section 46 of the
Interpretation Act, 2009 (Act
792) as:
“includes
the holder of a public office
and a person appointed to act in
that office;”
In our view, the term “public
office” or “public
officer” is very broad and
includes the President,
Vice-President, Speaker of
Parliament, Chief Justice and
Superior Court Judges, Ministers
of State and Deputies, Regional
Ministers and Deputies, Members
of Parliament, Ambassadors,
Members of the Council of State,
Commissioners such as the
Chairperson of the Electoral
Commission and Deputies,
Chairman of the Commission for
Human Rights and Administrative
Justice and Deputies, Chairman
of the National Commission for
Civic Education and Deputy,
Chief Executive Officers of
State Owned Corporations other
than those set up for commercial
purposes, persons who serve in
the public services of Ghana,
persons who are agents of the
President and serve at his will
and pleasure, persons who occupy
elective positions among others
specified as such by an Act of
Parliament.
As we shall demonstrate in the
course of this judgment, all
these categories of public
office holders have different
retirement ages attached to the
offices they occupy. For
example, the retiring ages for
persons elected as President,
Vice-President, Speaker of
Parliament, Ministers of State
and Deputies, Ambassadors,
Members of Parliament though
public office holders are not
provided for in the
Constitution. They fall under
the category of political public
office holders. As such persons
elected or appointed into these
offices do not have any fixed
age at which they retire but
serve at the pleasure of the
appointing authority or at the
expiration of their tenure of
office.
Superior court judges are public
office holders whose retirement
ages are stated in the
Constitution, i.e., 65 years for
High Court judges and 70 years
for Chief Justices, Supreme and
Court of Appeal judges.
Additionally, heads of
constitutional bodies such as
the Chairperson of the Electoral
Commission and Deputies,
Chairman of the Commission for
Human Rights and Administrative
Justice and Deputies and the
Chairman of the National
Commission for Civic Education
and Deputy all have retirement
ages very different from the
core administrative staff of the
institutions. While the Chairmen
and Deputies have their
retirement ages tied up to that
of the Court of Appeal and High
Court judges respectively, the
core administrative staff who
are also public officers in the
same commissions are governed by
article 199(1) and retire at the
age of sixty (60) years.
On the contrary,
“public service”
is defined in article
295(1) as follows:
“includes
service in any civil office of
Government, the emoluments
attached to which are paid
directly from the Consolidated
Fund or directly out of moneys
provided by Parliament and
service with a public
corporation.”
Thus, the term “public
service” for the purposes of
our constitution is limited to a
sector composed mainly of career
bureaucrats
hired by the government on merit
rather than appointed or elected
to work for the public sector or
government departments commonly
referred to as
Ministries, Departments and
Agencies (MDAs).
The
institutional tenure of public
service workers is fixed in
terms of retirement age which
survives changes of political
leadership. Article 199(1) of
the Constitution prescribes a
retirement age of sixty (60)
years, and depending on the
exigencies of the office a
worker is entitled to a maximum
of five (5) years
post-retirement contract.
The scope of office holders
covered by this provision are
those specifically mentioned by
the Constitution, those provided
for by an Act of Parliament as
in the case of the Auditor
General and the core
administrative staff who work up
to pensionable age and who were
described in the 1968 and 1978
reports as persons whose
appointments were to go through
the Public Services Commission
to protect them
from direct or indirect
control of the Executive. It is
constitutional for a person to
be appointed into public office
on contract basis or with
specific tenure of office
reckoned in terms of years and
assigned, posted or appointed to
head a public service,
department, agency, or authority
created either by the
Constitution or an Act of
Parliament.
An example is the tenure of the
Chairman and Vice-chairman of
the Public Services Commission,
who though created under chapter
14 of the Constitution which
deals with the public services,
have their retirement ages
aligned to that of the Court of
Appeal and High Court judges
respectively i.e., seventy (70)
years and sixty-five (65) years
and not the sixty (60) years as
provided in article 199 for the
core staff of the public
services. The Chairman and
Vice-chairman are public
officers
charged with the responsibility
of “supervision
and regulation of, entrance and
promotion examinations,
recruitment and appointment into
or promotions within, the public
services, and the establishment
of standards and guidelines on
the terms and conditions of
employment in the public
services
and generally exercising
supervisory, regulatory and
consultative functions as
Parliament shall, by law,
prescribe.”
Thus, while the “public
service” is essentially the
bureaucratic and administrative
organ of the government, “public
office” is a combination of
the political, professional,
technical, bureaucratic,
administrative and legal organs
of the government.
A previous decision of this
court which is on all fours with
the issue under consideration is
the case of
Yovuyibor v Attorney General
[1993-1994] 2 GLR 343.
That case is one of the
early constitutional cases
decided by the court after the
promulgation of the
Constitution, 1992. The case
dealt with different categories
of employees with different
tenure of office within the
public services of Ghana.
Unfortunately, neither the
plaintiff nor defendant found
this case relevant to the
determination of the issues at
hand and therefore failed to
refer to or address us on its
relevance to the issue at hand
and the binding nature of the
case on us. Being an authority
of this court, we will proceed
to cite and apply it to this
case.
In the Yevuyibor case,
the plaintiffs, both
superintendents of police, were
compulsorily retired from the
Police Service at the age of
fifty-five (55) years a few
weeks after the coming into
force of the Constitution, 1992.
They filed a suit in the Supreme
Court for, inter alia,
declarations that as the
compulsory retirement age for
public officers under article
199(1) of the Constitution, 1992
was sixty (60) years, the
compulsory retirement age for
members of the Police Service
who were part of the Public
Service was sixty (60) years and
not
fifty-five (55) years as was
the case before the Constitution
came into force. They further
argued that their premature
retirement at the age of
fifty-five (55) years was
wrongful and a breach of the
provisions of article 199(1) of
the Constitution, 1992. In
opposing the action by the
plaintiffs, the Attorney-General
contended that by virtue of
section 8 of the transitional
provisions of the Constitution,
1992, particularly section 8(2)
thereof, the Police Force
continued to be governed by the
Police
Service Act, 1970 (Act 350), the
Police Service (Amendment)
Decree, 1974 (NRCD 303) and
the
Police Service Regulations, 1974
(LI 880) which required all
police officers to retire at the
age of fifty-five (55) years.
After noting that the Police
Service was under article 190(1)
of the 1992 Constitution clearly
listed as part of the public
services and that the plaintiffs
both held pensionable
appointments in the Police
Service, Amua-Sekyi JSC
delivering the unanimous
judgment of the court held at
page 347 that:
“It is to be observed that
there are two types of employees
in the public services: those
holding appointments for fixed
periods, usually computed in
years; and those holding
permanent appointments, i.e.
appointments for periods not
limited in terms of years. To
the former category belong
persons holding contract
appointments. These contracts
are usually of two years'
duration, but they may be for as
long as five years. To the
latter category belong the mass
of employees who by the terms of
their employment can look
forward to a lifetime engagement
in one public office or the
other. These are the career
officers in the various public
services who, subject to the
needs of the public services,
and their own competence and
good behaviour can expect to be
kept in employment until they
reach the prescribed retiring
age.”
The Yevuyibor case was decided
three years before the
Constitution of the Republic of
Ghana (Amendment) Act, 1996,
(Act 527) was passed by
Parliament. This constitutional
amendment introduced a new
article 199(4) granting
contracts of two-year duration
up to a maximum of five years
for public servants who had
attained the age of 60 years
under article 199(1). The
contract duration reckoned in
years referred to in that
judgment cover all public office
holders whose tenure of
appointments are reckoned in
number of years or who are
granted extension in their
service under article 199(4) of
the Constitution. The Yevuyibor
judgment, therefore, answers the
question posed in this issue
that apart from the retirement
age of 60 years, there are other
public office holders whose
tenure of employment within the
public services is reckoned in
terms of years.
Recently in this court’s case of
Donkor vs. The Attorney-General,
Writ No. J1/08/2017 dated 12th
June, 2019 (unreported),
Kotey JSC, delivering the
unanimous decision of the court
also identified the category of
staff which form the public
services in the following words:
“The overwhelming majority of
staff of public corporations and
authorities would be members of
the public service as described
by Article 190 of the
Constitution. Such staff must,
in accordance with Article 195
of the Constitution, be
appointed by the President
acting in accordance with the
advice of the governing board of
the corporation given in
consultation with the Public
Services Commission. Such
persons are public officers and
therefore governed by Article
191(b)”.
It is clear from the two cases
cited above that within the
public services, there are
workers who are engaged on fixed
terms measured in terms of years
of service and then the career
officers who have lifetime
engagement until they reach a
prescribed retirement age. The
argument submitted by the
plaintiff that the Constitution
contemplates only one retirement
age and secondly that the public
services created by Parliament
pursuant to article 190(1)(d)
are all required to retire at
the age prescribed in article
199(1) in our opinion will give
a narrow construction to the
constitutional provisions. Such
a narrow construction will do
damage to the constitutional
document which has been
interpreted to be a living
organism full of life with the
tendency to grow with the people
in their search for progress in
the future. We agree with the
interpretation of the
Constitution in the two cases
cited above. Since we do not
intend to invoke article 129 of
the Constitution to depart from
those decisions, they remain
binding on this court and the
parties in this case.
It is also worthy of mention
that apart from the appointments
the President is required to
make under article 195 into the
public services acting on the
advice of the governing council
of the service concerned and in
consultation with the Public
Services Commission, the framers
of the constitution in their
wisdom vested the President with
power to appoint certain key
public office holders in
consultation with or on the
advice of some other authority.
Parliament could also prescribe
in a law not inconsistent with
the Constitution for the
President to appoint any other
person to the public offices in
consultation with or on the
advice of the Council of State.
This provision is made in
Chapter 8 under the Executive.
Article 70 provides as follows:
70
(1) The President shall, acting
in consultation with the Council
of State, appoint-
(a) the Commissioner for Human
Rights and Administrative
Justice and his Deputies;
(b) the Auditor-General;
(c) the District Assemblies
Common Fund Administrator;
(d) the Chairmen and other
members of -
(i) the Public Services
Commission;
(ii) the Lands Commission;
(iii) the governing bodies of
public corporations;
(iv) a National Council for
Higher Education howsoever
described; and
(e) the holders of such other
offices as may be prescribed by
this Constitution or by any
other law not inconsistent with
this Constitution.
(2) The President shall, acting
on the advice of the Council of
State, appoint the Chairman,
Deputy Chairmen, and other
members of the Electoral
Commission.
Reading the Constitution
carefully, these article 70
appointees are special classes
of public officers who play
critical or sensitive roles in
the governance structure of the
country. This is how Dotse JSC
described that class in
the case of
Appiah
Ofori vs. Attorney-General
[2010] 2 GLR 294 at
355:
“if one looks at the category
of office holders mentioned in
Article 70 of the Constitution
it is clear that they are
special breed of public office
holders whom I may refer
to as crème de la crème of
either the Public Services of
Ghana and or of core
constitutional bodies performing
very critical, and sometimes
delicate constitutional
functions”.
These classes of public office
holders usually head
constitutional bodies, statutory
bodies or other state
institutions referred to in the
Constitution or created by an
Act of Parliament. As such
lumping the mode of appointments
and tenure of these heads with
the bulk of the core
administrative staff engaged
under different provisions of
the Constitution to work in the
same institutions is a recipe
for confusion and hasty
conclusions when interpreting a
constitution.
Interpreting the phrase
preceding article 195(1)
“Subject to the provisions of
this Constitution” reference
would be made to the case of
Edusei
v Attorney-General [1997-1998] 2
GLR 1 at 42 where
Acquah JSC (as he then was)
explaining the phrase “subject
to” used in a constitution or
enactment stated as follows:
“The net result of the above
analysis is that where a
statutory provision is expressed
to be “subject to” another
statutory provision or statute,
this generally makes the
“subject to” provision prevail
over the main provisions,
whenever there appears to be
conflict or incongruity in
reading the two provisions
together.”
This phrase implies that where
other provisions of the
Constitution have prescribed
specific modes for appointments
into public office or retirement
from the office, the specific
mode takes precedence over the
general. This is in consonance
with the generalia
specialibus non derogant
doctrine which translates to
mean general words in a later
statute do not repeal an earlier
statutory provision dealing with
a special subject. The general
words must yield to those of a
special one.
It is clear that the
appointments, tenure and
conditions of service of
majority of these public office
holders by the President in
article 70 is separate and takes
precedence over the general
provisions made in article
195(1) for the appointments of
core administrative staff to the
public services.
We have observed that all the
office holders mentioned in
Article 70 perform such delicate
governance functions that
regulate, control and give
meaning to the democratic
dispensation that Ghana has been
enjoying since 7th January,
1993. It is in pursuit of the
above that the said office
holders need to be protected
first from early retirement as
other public office holders do
under Article 199(1). The
rationale for this in our
opinion, is to ensure that the
state benefits from the rich
experience that they will gather
on the job by their long stay in
office up to seventy (70) or
sixty-five (65) as the case may
be.
Drawing another analogy, the
Auditor-General who is also a
key public office holder
appointed by the President in
consultation with the Council of
State and enjoys the status of
article 71 office holder has his
retirement age interpreted by
the Supreme Court in
Appiah Ofori v Attorney-General
(supra)
to be (sixty) 60 years as
legislated by Parliament in
section 10(4) of the
Audit
Service Act, 2000 (Act 584).
What conclusion do we draw from
the interpretation of articles
190(1)(d), 195(1), 199(1) & (4),
295(1) read together with
article 70? We find from
perusing the totality of the
various articles that the
framers of the Constitution in
their wisdom prescribed
different retirement ages for
different classes and category
of key public office holders.
Reading, therefore, the
Constitution as a whole, the
conclusion that the framers did
not prescribe one retirement age
of sixty (60) years for all
classes of public officers is
without question. In our
opinion, if the framers had
intended one retirement age for
all classes of public office
holders, the Constitution would
have stated so explicitly and
unequivocally.
Interpreting, further, the
language of Article 199, it is
our opinion that when read
carefully and purposively, it
will leave no one in doubt that
a fixed retirement age of sixty
(60) years was never
contemplated for all classes of
public officers. The opening
sentence of the article gave a
proviso “except
as otherwise provided in this
Constitution”.
This implies that the framers
contemplated a situation where
other retirement ages would be
provided for other public
officers. These other officers
have been excepted from
retirement at sixty (60) years
in article 199(1). Again, the
emphasis on “public
officer”
retiring from the “public
service”
clearly limits the sixty (60)
years retirement to public
officers who work in the public
services and who are not
excepted by other retirement
ages in other provisions of the
Constitution such as article 70.
If these categorisations in
retirement ages have been put in
place by the framers of the
Constitution, is Parliament in
making laws for the appointment
of such critical staff to head
the public services disabled
from placing this staff under
article 70 and making provision
for their tenure? We decline to
accede to an interpretative
approach which will tie the
hands of the representatives of
the people and create confusion
and disaffection among the
larger society.
In our opinion, in the absence
of any such clear prohibition,
inference or language in the
Constitution pointing to one
conclusion, i.e., the intention
of the framers to bar Parliament
from crossing the sixty (60)
year retirement age when fixing
the tenure of office for certain
critical office holders, we find
no basis to accede to the
arguments put forward by the
plaintiff that Parliament, in
exercising its residuary powers
under article 190(1)(d), is
disabled from prescribing a
retirement age outside the one
provided for the core
administrative staff of the
public services.
An interpretation of the
Constitution which locks down
the whole country in a strait
jacket, unable to extricate
itself from the shackles of
man-made blockades is dangerous
and will do damage to the
progress and development of the
country. In the peculiar
situation under discussion, it
will make it impossible to tap
certain category of human
resource expertise when the need
arises.
A clear example is the recent
covid-19 pandemic which some
countries, overwhelmed by the
numbers, recalled health staff
who were on retirement into
active service to help manage
the crisis. Did the framers of
the Constitution anticipate a
crisis situation in which
experts with diverse experiences
in the health sector would be
needed by the state to lead the
fight against the pandemic? Will
it be unconstitutional to
contract such health service
workers who have passed the age
of 60 years and have the profile
to assist in the fight against
an unseen virus which we never
anticipated will bring the world
to its knees?
Future unexpected crisis or
similar situation may occur
where the expertise needed to
assist the country to manage
that crisis may be found in a
person with expertise and
experience but one who has
passed 60 years. Surely an
interpretation contemplated by
the plaintiff will not find
favour with the purposive
approach so touted in the
jurisprudence of this court. It
will be counter-productive and
will end up opening the
Constitution to frequent
amendments just to take care of
the exigencies of the time.
In our opinion, the Constitution
has set the tone by permitting
certain critical staff to have
different retirement ages from
that of the core staff.
Parliament, therefore, in
creating other public services,
has the implied authority to
also prescribe retirement ages
above sixty (60) years for the
critical public office holders
provided for in the enactments
passed by it. Any other
interpretation to the
constitutional provisions will
stultify the growth of our
democracy and paralyse the
ability of Parliament to be
dynamic and lead the way for our
Constitution to grow as a living
organism.
The plaintiff has also submitted
that the provisions in article
199(4) should be interpreted to
mean that the entitlement to a
post retirement contract must be
limited to those public service
workers at post at the time of
the attainment of sixty (60)
years. Hence, a worker who
passes the age of sixty-five
(65) years would not be entitled
to a post-retirement contract.
We have looked at the provisions
of article 199(4) and note that
the framers carefully chose the
language used in that provision
for a reason. They provided for
“a public officer who has
retired… after attaining the age
of sixty years” without
qualifying the effective date of
the retirement. Further, the
manner of engagement stated that
“be engaged for a limited
period of not more than two
years at a time but not
exceeding five years in all.”
A narrow construction of this
provision will lead to
undesirable results not
contemplated by the framers. An
expansive, broad and liberal
interpretation will bring the
provision in conformity with the
needs of the time. It will also
give meaning to the growth
expected of our constitution as
a living organism. In the case
of article 199(1), the
retirement age was stated
clearly as sixty (60) years. In
article 145, the ages of
sixty-five (65) years and
seventy (70) years was expressly
provided for the retirement ages
of High Court judges, and Court
of Appeal and Supreme Court
judges respectively. Further,
for the Commissioner for Human
Rights and Deputies, article 232
expressly provided for their
retirement ages at seventy (70)
and sixty-five (65) years
respectively. Nowhere in article
199(4) is sixty-five (65)
mentioned as the age for the
exit of persons serving post
retirement contracts. It is
possible for a technical person
to retire from the public
services and be replaced by
another who is then
incapacitated by illness or dies
within a few months. In
situations such as this, is it
the case of the plaintiff that
if a replacement for that
technical position cannot be
found immediately from that
public service department, the
retired officer or some other
qualified person above the age
of 60 years cannot be brought
back and given a contract for up
to a maximum of 5 years
duration? An interpretation of
this kind will make the
Constitution inflexible and lead
to undesirable public policy
consequences.
To sum up, the plaintiff fails
in issue (a) and we declare that
by a true and proper
interpretation, the Constitution
does not prescribe one
compulsory retirement age of
sixty (60) years for all classes
of public officers.
Issue (b) is also determined
against the plaintiff. We
declare that by a true and
proper interpretation of
Articles 190(1)(d), 199(1),
199(4), and 295 of the
Constitution 1992, the
retirement age of all holders of
public offices in the public
services created pursuant to
Article 190(1)(d) is sixty (60)
years for majority of the core
administrative staff who are
pensionable officers. In the
case of other public office
holders who are classified as
critical staff appointed under
articles 70 or 195, their tenure
is fixed in terms of years of
service specified in the law
appointing them or in their
letters of appointment as the
case may be.
We determine issue (d) that by a
true and proper interpretation
of Articles 190(1)(d) and 199(4)
of the Constitution 1992, a
public officer whose expertise
is critical to the function of a
public service and is above the
age of 65 years is eligible to
serve a tenure calculated in
number of years and where the
exigencies of the service
require any other public officer
in the public services is
eligible for post-retirement
employment of up to 5 years in
any public office created under
Article 190(1)(d).
Issue (c):
This is an issue which deals
with whether or not Parliament
has residual legislative powers
to prescribe for the appointment
of a specific public office
under a specific Act of
Parliament.
Though the parties agreed on
this issue and framed it in
their memorandum of agreed
issues, the plaintiff in his
statement of case failed to
advance any argument to assist
the court to determine this
issue. This notwithstanding,
being a constitutional case
which affects the body polity,
the court will proceed to deal
with it.
The doctrine of separation of
powers is firmly enshrined in
the Constitution, 1992. The
doctrine ensures that all organs
of state operate harmoniously
within the framework of the
Constitution. Based on this, the
legislative power of the State
is vested in Parliament. This is
provided for in chapter 10 of
the Constitution. Thus, article
93(2) provides as follows:
“93(2) Subject to the
provisions of this Constitution,
the legislative power of Ghana
shall be vested in Parliament
and shall be exercised in
accordance with this
Constitution.”
Article 106 expressed the power
of Parliament to make laws in
the form of bills passed and
assented to by the President.
Article 190(1) listed the public
services existing at the time of
the promulgation of the
Constitution. Because the
Constitution has been identified
as “a living organism capable
of growth”, the framers
anticipated situations where in
future other public services not
conceived of before 1992 would
be needed for the effective
governance of the country. This
is not surprising because hardly
will any constitutional document
conceive of all situations which
will arise in the future and
provide for them. It is
precisely because of the dynamic
nature of society that provision
was made in article 190(1)(d)
for Parliament to create by an
Act, such other public services,
their governing councils,
functions and membership.
Additionally, article 70(1)(e)
recognises the right of
Parliament to make laws not
inconsistent with the
Constitution by vesting in the
President power to make
appointments of key public
office holders in consultation
with or on the advice of the
Council of State. The
implication of this provision is
that Parliament in exercising
its law-making powers under
article 190(1)(d) can in one Act
create a public service and in
the same act make provision for
the appointment of certain
public office holders by the
President in consultation with
or on the advice of the Council
of State.
The framers also anticipated a
situation in article 298 where
no provision is made on a matter
that has arisen for the first
time. In such a situation,
Parliament shall by an Act, not
inconsistent with the
Constitution, provide for that
matter to be dealt with.
Parliament, under the
Constitution, therefore has
residual powers to enact laws to
cover all matters not
anticipated by the framers and
which arise in the future,
subject, of course, to the same
Constitution.
We are left in no doubt after
reading the Constitution as a
whole that since the
Constitution foresaw that not
all public officers in the
Public Services will have a
uniform retirement age of sixty
(60) years, Parliament in
exercising its powers under
article 190(1)(d) has
flexibility and authority in
appropriate cases to prescribe a
retirement age different from
the article 199 age as the
exigencies of the job will
require. To say that Parliament
should have no power in
providing the retirement age of
certain classes of public
officers identified subsequent
to the promulgation of the
Constitution will create a rigid
and inflexible approach towards
a document which is aimed at
moving along with the changing
scenes of the times for the
development of the country. In
our view, Parliament in Act 959
did discharge creditably its
responsibilities assigned to it
in article 190(1)(d) by
providing the tenure for the
Special Prosecutor and Deputy.
A few examples of such powers
exercised by Parliament to
create public services with
tenure for specified office
holders since the promulgation
of the Constitution, 1992 will
support the interpretation,
being put forward by us, of the
Constitution.
DISTRICT ASSEMBLIES COMMON FUND
ACT
Article 252(4) & (5) of the
Constitution established the
Office of a District Assemblies
Common Fund Administrator to be
appointed by the President with
the approval of Parliament. The
Constitution did not specify the
tenure. It did not also assume
that the office being part of
the public services, the
Administrator shall retire at
the age of sixty (60) years in
accordance with article 199(1).
However, in the wisdom of the
framers, clause (5) left the
determination of the tenure of
the office of the Administrator
to Parliament to fix by an Act.
This is the language used in the
Constitution:
“Article 252
(4) There shall be appointed by
the President with the approval
of Parliament, a District
Assemblies Common Fund
Administrator.
(5) Parliament shall by law
prescribe the functions and
tenure of office of the
Administrator in such a manner
as will ensure the effective and
equitable administration of the
District Assemblies Common
Fund.”
Acting in accordance with
article 252, Parliament in 1993
enacted the
District
Assemblies Common Fund Act (Act
455), vesting in the
President power to appoint the
Administrator in consultation
with the Council of State and
with the approval of Parliament.
We note that the Constitution
did not require the President to
consult the Council of State in
appointing the Administrator.
However, Parliament, in the
enabling Act added the Council
of State as an additional
authority to be consulted by the
President before submitting the
name to Parliament for approval.
Is this addition in the
consultation process beyond the
powers of Parliament and,
therefore, unconstitutional?
Will it enhance the consultation
process and ensure that broad
sectors of the governance
process were brought on board
for their input to enable the
right person to be appointed?
The Council of State plays an
important role in the governance
structure of this country by
counselling the President on
important matters including key
appointments of public officers.
In our opinion, Parliament as
the representative of the people
acted constitutionally when it
sought guidance from article 70
and broadened the consultative
process by the addition of the
Council of State.
Reviewing this Act further, we
observed that in the same Act
455, Parliament in section 5
fixed the tenure of the
Administrator for a period of
four (4) years and eligible for
re-appointment. If we were to
buy into the plaintiff’s
arguments, it will imply that
whoever is appointed into this
position as Administrator must
serve the article 199(1) tenure
and retire at the age of sixty
(60) years irrespective of the
age at which the person was
appointed. But will a tenure
like that be in the interest of
the country ruled by different
political parties? Will a
provision anticipated by the
plaintiff strengthen our
governance process? We must
guard against tying ourselves
into a knot which will fly in
the face of the very
constitution conceived to
liberate us as a people. In our
opinion, Parliament acted
constitutionally in fixing the
tenure of the Administrator for
a fixed term of years as against
the pensionable age. The power
exercised by Parliament in this
Act is not different from the
Office of Special Prosecutor
Act, 2017 (Act 959).
BANK OF GHANA ACT
Another Act relevant to the
determination of this case is
the Bank
of Ghana Act, 2002 (Act 612).
Section 17 deals with the
appointment and tenure of a
Governor and Deputy Governors.
It provides that the Governor
and two Deputy Governors shall
be appointed by the President
acting in consultation with the
Council of State for a term of
four years each and each one is
eligible for re-appointment.
Article 183(4) of the
Constitution, however, did not
provide for the two Deputy
Governors. The article only
provided for a Governor. Going
by the argument of the
plaintiff, it would seem that
Parliament in enacting the Bank
of Ghana Act will have no power
to provide for the appointment
of the two Deputy Governors and
fix their tenure for four years
because the Constitution did not
provide for those positions even
if the expertise of the two
Deputies will be needed by the
State. An argument like that
will hold when the Constitution
is being construed literally.
But for a written constitution,
the legislative intent will be
the flexible and purposive
approach. The role of the
framers of the Constitution is
to set forth the broad framework
leaving the details like mode of
operations, membership,
functions, governance and policy
formulations to the law-maker to
legislate. The American
Constitution is a classic
example of a document which gave
a broad indication of the
vision, mission and core values
the founding fathers had for the
country and left the detailed
workings within the framework to
Congress, the representative of
the people.
LABOUR ACT, 2003 (ACT 651)
Another Act of Parliament
relevant to these discussions is
the
Labour Act, 2003 (Act 651).
The Act deals with all matters
relating to labour in the
country. The Act makes provision
for the appointment of
Commissioners by the President
in consultation with the Council
of State. The Commissioners hold
office for a term of four (4)
years and are eligible for
re-appointment after the
expiration of their tenure of
office. There is no age limit
specified for the Commissioners
except their tenure of four (4)
years. Will it be
unconstitutional for Parliament
following similar appointments
in the Constitution such as the
headships of the Bank of Ghana
to vest the President in
consultation with the Council of
State with power to give a
tenure of four (4) years to
labour experts to serve as
Commissioners even if their ages
are above sixty (60) or
sixty-five (65) years? We think
not.
NATIONAL COMMUNICATIONS
AUTHORITY ACT, 2008 (ACT 769)
The
National Communications
Authority Act (Act 769) was
also passed in 2008 by
Parliament
to
license and regulate
communications activities and
services in the country. The
Authority has a Director-General
who is appointed in accordance
with article 195 of the
Constitution and holds office
for a period of not more than
five (5) years and eligible for
re-appointment. Again, in the
wisdom of Parliament, no age
limit is prescribed for the
appointment despite the fact
that it is made in accordance
with article 195. Is it the case
of the plaintiff that this Act
is unconstitutional? We find it
perfectly constitutional.
NATIONAL DEVELOPMENT PLANNING
COMMISSION ACT, 1994 (ACT
479)
The
National Development Planning
Commission is provided for
in article 86 of the
Constitution to advise the
President on development
planning policy and strategy.
The chairman and other persons
are appointed by the President
in consultation with the Council
of State
having regard to their knowledge and experience of the relevant areas and
roles pertaining to development,
economic, social, environmental
and spatial planning. The
Constitution did not specify the
tenure of office and retirement
age of the Commissioners.
However, by reason of the power
vested in it as the legislative
organ of the State, Parliament
in 1994, passed the National
Development Planning Commission
Act, (Act 479). The Act gave the
Commissioners a tenure of four
(4) years, and at the
expiration, eligibility for
reappointment for a further
term. Is this Act also
unconstitutional per the
plaintiff’s arguments about what
powers Parliament has? In our
opinion, Parliament was within
its powers when it passed this
Act.
PUBLIC SERVICES WITH TENURE OF
CHIEF EXECUTIVES RESERVED FOR
THE BOARD TO DECIDE IN LETTERS
OF APPOINTMENTS:
In the course of this opinion we
identified a number of public
services whose chief executive
officers were appointed by the
President or Board but their
tenure of office was either left
to the Board or stated to be
provided for in their letters of
appointments. A few of these
are:
THE BUI POWER AUTHORITY ACT,
2007 (ACT 740):
The Bui
Power Authority was set up in
2007 by an Act of Parliament,
Act 740, to
develop hydroelectric power
project on the Black Volta River
at Bui and any other potential
hydroelectric power sites on the
Black Volta River. Section 9
makes provision for a chief
executive officer to be
appointed by the Board. All his
terms and conditions are to be
determined by the Board.
COMMUNITY WATER AND SANITATION
AGENCY ACT, 1998 (ACT 564):
The
Community Water and Sanitation
Agency was enacted by Act 564 of
1998 to facilitate the
provision of safe water and
related sanitation services to
rural communities in Ghana. The
Act also made provision for a
chief executive officer who is
appointed under article 195 of
the Constitution, i.e., by the
President in accordance with the
advice of the Board given in
consultation with the Public
Services Commission. The Act
provides that the terms and
conditions of the chief
executive officer shall be
stated in his letter of
appointment.
COPYRIGHT ACT, 2005 (ACT 690):
The Copyright Office of Ghana is
another body enacted by an Act
of Parliament, the
Copyright
Act, 2005 (Act 690). Section
68 of the Act makes provision
for a chief executive officer to
be called the Copyright
Administrator. His appointment
is made by the President in
accordance with the advice of
the Legal Services Board given
in consultation with the Public
Services Commission. The terms
and conditions of office shall
be specified in his letter of
appointment.
ECONOMIC AND ORGANISED CRIME
ACT, 2010 (ACT 804)
By the
Economic and Organised Crime
Act, 2010 (Act 804), Parliament
set up the Economic and
Organised Crime Office to
monitor and investigate economic
and organised crime and on the
authority of the
Attorney-General prosecute the
offences to recover the proceeds
of crime. It has an Executive
Director and Deputies who by
sections 11 and 13 are appointed
by the President in accordance
with article 195 of the
Constitution. They hold office
on terms and conditions
specified in their letters of
appointment.
GHANA EDUCATION SERVICE ACT,
1995 (ACT 506) & GHANA HEALTH
SERVICE AND TEACHING HOSPITALS
ACT, 1996 (ACT 525):
Sections 12 and 13 of the
Ghana
Education Service Act, 1995,
(Act 506), makes provision
for the appointment of a
Director-General and two Deputy
Directors-General by the
President in consultation with
the Public Services Commission
but no retirement ages are
specified in the Act. Their
terms and conditions of office
shall be specified in their
letters of appointment. A
similar provision is made for
the Director-General and Deputy
Director-General in sections 11
and 12 of the Ghana Health
Service and Teaching Hospitals
Act, 1996 (Act 525).
NATIONAL PENSIONS ACT, 2008 (ACT
766):
Section 16 of the
National
Pensions Act, 2008 (Act 766)
provides for the appointment and
tenure of the Chief Executive of
the National Pensions Regulatory
Authority. The Chief Executive
who shall be a person with
expertise in pensions, actuarial
science, insurance or related
field is appointed by the
President in accordance with
article 195 of the Constitution.
His tenure, terms and conditions
of office is provided for in his
letter of appointment.
We could go on and on citing
many more Acts of Parliament
reserved by the Constitution for
Parliament to enact. If we were
to accede to the prayer of the
plaintiff, we will end up
nullifying and declaring
virtually all of these Acts of
Parliament unconstitutional and
wiping them out of our statute
books. And the result will be
chaos, anarchy and confusion in
our society.
The case of
Yovuyibor v Attorney General
(supra)
will again be appropriate in
explaining the status of the
tenure of public officers in the
public services. At page
348
the Supreme Court stated:
“Section 8(2) of the
transitional provisions of the
Constitution, 1992 caters for
the first category only by
requiring those holding
appointment for fixed periods to
vacate their offices in
accordance with the terms of
their engagement.”
Further in Donkor v Attorney
General (supra) the mode of
exit of these executive heads of
some of the statutory boards and
corporations established by Acts
of Parliament was explained by
the court in the following
words:
“This brings us to a
consideration of the position of
the executive heads (howsoever
described) of statutory boards
and corporations. Executive
heads of statutory boards and
corporations are usually members
of the governing body of their
institution but they are members
of the governing body by virtue
of their position as executive
head. Are they affected by
section 14 of Act 845 or not? In
our considered opinion the
answer to the above question
lies in the mode of appointment
of the executive head concerned
and the terms and conditions of
his appointment. It can be
deduced from article 195(1) and
the sample legislation we have
examined that the Executive
heads of Statutory Boards and
Corporations are appointed by
the President acting in
accordance with the advice of
the governing board concerned
given in consultation with the
Public Services Commission.
Their tenure and terms and
conditions are specified in
their letters of appointment.
Are executive heads of Statutory
Boards and Corporations affected
by section 14 of Act 845? Upon a
careful consideration and a
purposive interpretation of
relevant constitutional and
legislative provisions, it is
our considered view that
executive heads of statutory
boards and corporations are not
affected by section 14 of Act
845. They are public officers
under article 190 of the
Constitution. They hold office
under terms and conditions
stated in their letters of
appointment and may only be
removed in accordance with those
terms.”
The constitutionality of
appointments and the tenure of
these chief executive officers
having been confirmed by this
court in the Donkor case,
we do not think we should
revisit the legality of an Act
of Parliament providing for
their tenure being determined in
their letters of appointments by
the Boards of the respective
institutions.
PRESIDENTIAL (TRANSITION) ACT,
2012 (Act 843)
It is relevant at this juncture
to examine the
Presidential (Transition) Act,
2012 (Act 843) which was
enacted by Parliament to cater
for arrangements for the
political transfer of
administration from one
democratically elected
President, to another
democratically elected
President, and for the
regulation of the political
transfer of power. Section 14 of
the Act provides that on the
assumption of office of a newly
elected President, various
public office holders shall
cease to hold their office, and
be paid the relevant retirement
benefits and the enjoyment of
facilities provided by law. The
public office holders who cease
to hold their offices include:
1.
The persons holding office under
the Presidential Office Act,
1993 Act 463).
2.
Ministers and Deputy Ministers
of State.
3.
Regional and Deputy Regional
Ministers of State.
4.
Special Assistants, Special
Aides to the President, to the
Vice-President and to the
Ministers of State, Deputy
Ministers, Regional Ministers
and Deputy Regional Ministers.
5.
Non-career Ambassadors and High
Commissioners.
6.
Persons appointed by the
President or a Minister of State
as members of Statutory Boards
and Corporations.
It is interesting to note that
majority of public office
holders specified above are
required by this law to cease
holding their offices whether
they have attained the
compulsory retirement age of
sixty (60) years or not. If the
plaintiff’s argument is to be
accepted, all public office
holders shall retire at the age
of sixty (60) years. Therefore,
Parliament will have no
discretion and flexibility to
make provision in an Act as Act
843 for the exit or retirement
of political public office
holders before attaining the age
of sixty (60) years.
However, the exigencies of the
country experienced in the
chaotic transfer of political
power from one political regime
to another warranted the
country’s need for Act 843
passed by Parliament. The Act
has averted a situation where a
newly elected President would be
compelled to work with certain
public office holders he did not
appoint and could not guarantee
will be faithful to the
implementation of his policies.
Until the Act came into force in
2012, the chaos surrounding our
transition process was still
fresh in the minds of many
Ghanaians. Act 843 justifies why
a constitution must be
interpreted having in mind the
aspirations of the people in
their search for progress,
growth and development.
Interpreting a constitutional
document to tie the hands of
Parliament acting within the
framework of the Constitution
is, again, counter-productive.
Section 14(3) has an interesting
provision. It states as follows:
“14(3) A public officer,
whose office is not specified in
the Schedule, continues to hold
office on the assumption of
office by the person elected as
President, subject to the
provisions of the Constitution
and of the relevant law
applicable to that public
officer.”
Our understanding of this
provision is any other public
officer who is not listed to
cease holding office on the
assumption of a new President
will continue to hold office
until his constitutionally
mandated retirement age
prescribed by law. This category
falls within the core public
service staff earlier described
in this judgment. Interestingly,
we find a similar provision for
the
appointment of the
administrative staff of the
Office of Special Prosecutor in
section 21 of Act 959 which
provides as follows:
21. (1) The President shall in
accordance with article 195 of
the Constitution, appoint other
staff of the Office that are
necessary for the proper and
effective performance of the
functions of the Office.
PRESIDENTIAL OFFICE ACT, 1993
(ACT 463)
Another Act of Parliament worth
discussing is the
Presidential Office Act, 1993
(Act 463) which was passed
by the first Parliament to
provide for appointed and
seconded staff and their
functions for the President and
Vice-President. The salaries,
allowances and pensions payable
to the staff serving at the
Office are charged on the
Consolidated Fund. In addition,
the code of conduct specified in
chapter twenty-four of the
Constitution for public office
holders shall apply to all staff
of the Presidential Office.
Irrespective of the age, the
staff are appointed by the
President in consultation with
the Council of State and shall
hold office at the pleasure of
the President. The staff shall
cease to hold office on the
removal, resignation or on
cessation of the tenure of
office of the President. Their
tenure is linked to that of the
President irrespective of
whether or not they have
attained the age of 60 years.
THE AUDIT SERVICE ACT, 2000 (ACT
584)
The Audit Service is part of the
public services listed under
Article 190 of the Constitution.
The Constitution makes provision
for an Auditor-General to be
appointed by the President in
consultation with the Council of
State in accordance with Article
70 of the Constitution. However,
the retirement age of the
Auditor-General was not stated
in articles 70 or 187 as was the
case of other appointees of the
President under Article 70 of
the Constitution. When
Parliament enacted the
Audit
Service Act, 2000 (Act 584),
section 10(4) provided for the
retirement age of the
Auditor-General to be sixty (60)
years.
The plaintiff referred to the
case of Appiah-Ofori v
Attorney-General (supra) as
being on all fours with his
claim and invites this court to
invoke the holdings in that case
and rule in his favour. In that
case, section 10(4) of the Audit
Service Act, 2000 (Act 584)
stated the retirement age of the
Auditor-General to be sixty (60)
years. Appiah-Ofori brought a
writ to this court for the
interpretation of the
Constitution. According to him
since the Auditor-General is
appointed under article 70 and
since his conditions of service
are tied up to that of a justice
of the Court of Appeal, the
Auditor-General is also to
retire at the age of 70 years as
applicable to justices of the
Court of Appeal and not sixty
(60) years as enacted in Act
584. The Supreme Court held that
the Auditor-General is not
entitled to the benefit of the
retirement age provided for
justices of the Court of Appeal
and that the sixty (60) years
provided in Act 584 is what
should apply to his retirement
age.
We think the ratio of the
Appiah-Ofori’s case is very
different from the facts
presented in this case. Nowhere
in Appiah-Ofori was it held that
all public office holders
appointed pursuant to Article 70
or whose offices are part of the
public services of Ghana should
retire at the age of sixty (60)
years. We, therefore, decline
the invitation by the plaintiff
to apply Appiah-Ofori to this
case.
It appears to us that the
plaintiff is satisfied with the
tenure of sixty (60) years
provided by Parliament in Act
584. If that is the case, we
find it difficult to appreciate
why the plaintiff should have a
problem with other tenure
provided by the same Parliament
in other Acts passed pursuant to
power vested in it by the
Constitution. Is it a case of
one size fits all? Or the
plaintiff is satisfied with Act
584 because it coincided with
his interpretation of what a
compulsory retirement age for
all officers in the public
service should be.
The authority of Parliament to
enact laws to supplement the
provisions in the Constitution
was explained by this court in
the case of
Janet
Naakarley Amegatcher v
Attorney-General [2012] 2 SCGLR
933. The plaintiff in
this case challenged the
authority of Parliament to make
certain laws and to delegate its
responsibility under the
Constitution to the Executive
and other bodies. Date-Bah JSC
after reviewing the arguments of
the plaintiff postulated the
role of Parliament in law-making
under our current dispensation
in the following words at
953-954:
“It is dangerous, from a public
policy standpoint, to construe
the legislative authority of
Parliament too restrictively,
since this is likely to
incapacitate it from dealing
with exigencies and
contingencies in relation to
which the public interest may
require it to take legislative
action, of necessarily different
kinds within a wide range.
Undesirable legislation needs to
be distinguished from
unconstitutional
legislation….. To proscribe the
option adopted in the Act would
be tantamount to limiting the
plenitude of the legislative
authority of Parliament too
narrowly……The legislative power
thus vested in Parliament should
be expansively interpreted in
the interest of the effective
representative democratic
governance of this country.
Parliament should be regarded as
authorised to pass any
legislation on any matter so
long as in doing so it does not
breach any express or implied
provision of the Constitution.
This is axiomatic! Were the
legislative power of Parliament
to be restricted beyond what the
provisions of the Constitution
require, this would be an
assault on the sovereignty of
the people, whose
representatives constitute
Parliament. To me therefore, it
is clear that Parliament has the
fullest of legislative power,
subject only to what the
Constitution prohibits,
expressly or impliedly.
Democratic principles demand
this conclusion.”
We could not have a better
summary of the right of
Parliament to enact laws setting
up public services and the
tenure of their chief executive
officers than the dictum
enunciated above by Date-Bah
JSC. We wholly agree with the
law expounded by him and adopt
it as our own in concluding our
arguments on this issue.
We, therefore determine issue
(c) that on a true and proper
interpretation of articles
93(2), 106 and 298 of the
Constitution, Parliament has
residual legislative powers to
prescribe for the appointment of
a specific public office under a
specific Act of Parliament.
Issue (e):
This issue is calling for an
analysis whether or not by
reason of his age, sixty-six
(66) years, Mr Martin Amidu is
qualified or eligible to be
nominated, appointed and
approved as the Special
Prosecutor under Section 13(3)
of the Office of the Special
Prosecutor Act, 2018 (Act 959)
and to assume and act in an
office created under Article
190(1);
In his submissions on this
issue, the plaintiff argues that
on a true and proper
interpretation of articles
190(1)(d), 199(1), 199(4) and
295 of the Constitution, Martin
Amidu having already attained
the age of sixty-six (66) years
as at September, 2017, is not
qualified or eligible to be
nominated by the Attorney
General, appointed by the
President and approved by
Parliament to serve in the
public services generally, and,
specifically, as the Special
Prosecutor under Section 13(3)
of the Office of the Special
Prosecutor Act, 2018 (Act 959).
As pointed out above, there are
different categories of public
office holders who serve in the
public services under different
tenure specified by the
Constitution or the enabling Act
of Parliament. At age sixty-six
(66) years, Martin Amidu was
nominated, vetted by Parliament
and sworn in to be the Special
Prosecutor. The office is a
specialized agency created by
Parliament to
investigate specific cases of
alleged or suspected corruption
and corruption-related offences
involving public officers and
politically exposed persons in
the performance of their
functions. It is also to
investigate persons in the
private sector involved in the
commission of alleged or
suspected corruption and
corruption-related offences and
prosecute these offences on the
authority of the
Attorney-General.
After his nomination, he
appeared before Parliament to be
vetted and approved. Section
13(9) of Act 959 provides that
before assuming office, the
Special Prosecutor shall take
and subscribe to the Official
Oath and Oath of Secrecy
specified in the Schedule. A
review of the Constitution and
laws passed by Parliament will
reveal that public office
holders who go through the
Parliamentary approval process
and thereafter subscribe to an
oath of office before assuming
office are a peculiar class of
public officers with different
tenure and conditions attached
to their offices outside the
provisions made for the core
staff of the public services.
Some have their tenure fixed at
seventy (70) years. Others are
computed in fixed term of years
while the rest are tied up to
the tenure or discretion of the
appointing authority.
Articles 78(1) and 79(1) of the
Constitution require Ministers
of State and Deputy Ministers of
State to go through
Parliamentary approval. Article
256(1) & (2) also provides for
Regional Ministers and their
Deputies to go through
Parliamentary approval. These
political public office holders
have their tenure tied up to the
tenure or discretion of the
appointing authority. No age is
prescribed to qualify to serve
in these offices. In the case of
Chief Justices and Supreme Court
judges who also go through
Parliamentary approval under
articles 144(1) & (2)
respectively, their tenure is
fixed at seventy (70) years.
The last office which goes
through Parliamentary approval
is the District Assemblies
Common Fund Administrator. As
already discussed above, article
252 (4) & (5) of the
Constitution did not fix the
tenure of office but assigned
that responsibility to
Parliament to determine. Act 455
fixed the tenure for four (4)
years renewable for another term
of four (4) years. No age limit
is prescribed to qualify a
person to hold that office.
Therefore, one common feature
running through these
Parliamentary approval class of
public office holders is that
their retirement ages are
different from the sixty (60)
years prescribed in article
199(1) for public officers
retiring from the public
service. The question is, if in
the wisdom of the framers of the
Constitution all such public
office holders have had their
retirement ages fixed outside
the article 199(1) age, why will
Parliament be faulted for
prescribing a fixed tenure
retirement age for the Special
Prosecutor whose office also
goes through Parliamentary
approval? The reasons provided
by the plaintiff do not find
favour with us because they are
not in consonance with the
letter, spirit, purpose and core
values of our sacred document
and same is rejected.
In our opinion, the intention of
Parliament is to give whoever is
appointed into the office
security of tenure and peace to
perform the assignment. That is
why a non-renewable tenure of
seven (7) years is provided for
the Special Prosecutor and two
terms of four years for the
Deputy Special Prosecutor. The
difficulty in plaintiff’s
arguments, if stretched, would
mean that if the Special
Prosecutor is appointed at the
age of forty (40) years, he will
not retire at age forty-seven
(47) but by operation of article
199(1) will continue in office
for another thirteen (13) years
until he attains sixty (60)
years. In our opinion, the
intention is not to make the
office a career position up to
the pensionable age of 60 years.
See the dictum of Amua-Sekyi JSC
in
Yovuyibor v Attorney General
(supra).
Consequently,
the age of retirement for Martin
Amidu as the Special Prosecutor
becomes immaterial, as long as
at age sixty-six (66) years, he
was competent, met the
requirements provided for
appointment into the office and
had validly been approved by
Parliament and sworn in by the
President to serve the
non-renewable term as indicated
in section 13 of Act 959. We,
therefore, answer this issue
whether or not by reason of his
age, sixty-six (66) years, Mr
Martin Amidu is qualified or
eligible to be nominated,
appointed and approved as the
Special Prosecutor under section
13(3) of the Office of the
Special Prosecutor Act, 2018
(Act 959) and to assume and act
in an office created under
Article 190(1) in the
affirmative.
ISSUE (f):
The last issue addresses
whether
or not by a true and proper
interpretation of articles
190(1)(d), 195(1) and 295 of the
1992 Constitution, sections
13(1) and 16(2) of the Office of
the Special Prosecutor Act, 2017
(Act 959) are inconsistent with
and/or contravene article 195(1)
of the 1992 Constitution.
Act 959 establishes the Office
of Special Prosecutor as a body
corporate with perpetual
succession and the power to
acquire and hold movable and
immovable property and enter
into contract. Its main object
is to investigate specific cases
of alleged or suspected
corruption and
corruption-related offences
involving public officers and
politically exposed persons in
the performance of their
functions. Additionally, it
investigates persons in the
private sector involved in the
commission of alleged or
suspected corruption and
corruption-related offences,
prosecute these offences on the
authority of the
Attorney-General, recover the
proceeds of the
corruption-related offences and
take steps to prevent
corruption.
It is the submission of the
plaintiff that because the
Office of Special Prosecutor was
enacted by an Act of Parliament
under article 190(1)(d) of the
Constitution, it is part of the
public services of Ghana and
hence its officers including the
Special Prosecutor and Deputy
must be appointed in accordance
with article 195(1) of the
Constitution, i.e., by the
President, acting in accordance
with the advice of the governing
council of the service concerned
given in consultation with the
Public Services Commission. It
is further the case of the
plaintiff that if indeed
Parliament enacted Act 959 as
part of the public services
under chapter 14, then
Parliament could not provide for
an office holder or Deputy in a
manner contrary to article
195(1). In effect, apart from
the age of the Special
Prosecutor, the plaintiff is
also questioning the mode of
appointment of the Special
Prosecutor and Deputy.
The Plaintiff also avers that
the Office of the Special
Prosecutor was established by an
Act of Parliament pursuant under
Article 190(1)(d) of the 1992
Constitution, which confers on
Parliament the power to create
such other public services as it
may prescribe, in addition to
the Public Services spelt out in
chapter 14 of the 1992
Constitution. According to the
plaintiff, the Office of the
Special Prosecutor is thus a
creature of the Constitution to
the extent that it is a direct
offshoot of a power drawn from
Article 190. “Once Parliament
passed Act 959 and the President
assented to it on 2nd
January, 2018, the Office of the
Special Prosecutor became part
of the Public Service and
governed by the constitutional
provisions relating to the
Public Service and Public office
holders. Plaintiff argues in the
alternative, that Article 959
created a public corporation
within the meaning of
definitions provided under
Article 295 and 190(4).
Plaintiff concludes his
submissions that the Special
Prosecutor envisaged under
Section 12 of the Act, if
appointed, would be a public
officer.”
Section 13(1) of Act 959
provides that
“A person is not qualified for
appointment as the Special
Prosecutor if that person (a)
owes allegiance to a country
other than Ghana; (b) has
been adjudged or otherwise
declared (i) bankrupt under any
law in force in Ghana and has
not been discharged; or (ii) to
be of unsound mind under any law
in force in Ghana; (c)
has been convicted (i) for high
crime under the Constitution or
high treason or treason or for
an offence involving the
security of the State, fraud,
dishonesty, or moral turpitude
or (ii) for any other offence
punishable by death or by a
sentence of not less than ten
years; or (d) has been
found by the report of a
commission or committee of
inquiry to be incompetent to
hold public office or is a
person in respect of whom a
commission or committee of
inquiry has found that while
being a public officer that
person acquired assets
unlawfully or defrauded the
State or misused or abused the
office of that person, or
willfully acted in a manner
prejudicial to the interest of
the State, and the findings have
not been set aside on appeal or
judicial review.”
The Special Prosecutor is
nominated by the
Attorney-General for appointment
by the President, subject to the
approval of the majority of all
the members of Parliament. The
tenure of office is provided for
in Section 13(5) as follows:
“13(5)
The Special Prosecutor shall
hold office on the same terms
and conditions of service as a
Justice of the Court of Appeal
except that the tenure of office
shall be a non-renewable tenure
of seven years.”
In the case of the Deputy
Special Prosecutor, apart from
the minimum qualification of
being a lawyer of not less than
ten years standing at the Bar
and is of high moral character
and proven integrity and also
possesses the relevant expertise
in corruption and corruption
related matters, he is also
nominated by the
Attorney-General for appointment
by the President, subject to the
approval of the majority of all
the members of Parliament. The
tenure of office of the Deputy
is provided for in section 16(4)
as follows:
“16(4) The Deputy Special
Prosecutor shall hold office on
the same terms and conditions of
service as a Justice of the High
Court except that the tenure of
office shall be for a term of
five years and may be appointed
for another term only.”
It is the qualification set for
a person to hold the office and
the mode of appointment which
the plaintiff argues is
unconstitutional because article
195(1) made no provision for the
qualification and mode of
appointment.
The plaintiff buttresses his
arguments by referring to
sections 10(2) & (3) of the
Interpretation Act, 2009 (Act
792) which allows resort to
documentary history such as the
Official Report on the
Parliamentary Debates captured
in the Hansard to outline the
real intentions of Parliament in
enacting specific legislation.
According to the plaintiff,
these Parliamentary debates are
an aid to the interpretation of
the Constitution.
We intend to address first the
role of the Interpretation Act
in interpreting a Constitution
and the use of Parliamentary
debates as an aid to the
Constitution. In answer to the
arguments of the plaintiff on
these preliminary matters, the
Attorney-General submitted that
the Interpretation Act, 2009
(Act 792) cannot be an aid to
the interpretation of the
Constitution because it is a
mere Act of Parliament. Further
section 2(1) of Act 792 limited
the scope of application of the
provisions of the Act to only
enactments which do not include
interpretation of the
Constitution. In that regard,
the Attorney-General invited
this court to reject the
invitation of the plaintiff to
apply the provisions of the Act
which permits the reliance on
Parliamentary debates as an aid
to interpretation of the
Constitution. The
Attorney-General did not cite
any authority to justify his
submissions.
We have reviewed the
submissions. As a general rule,
in interpreting a constitutional
document, one must first resort
to the language of the
Constitution itself. If that
fails, other aids may be
resorted to for guidance but not
as a substitute to the
time-tested approaches developed
as part of the jurisprudence of
this court in interpreting
written constitutions. Thus in
the case of
New
Patriotic Party v
Attorney-General [1997-1998] 1
GLR 378 an invitation
was made to the Supreme Court to
disregard the use of the then
Interpretation Act, 1960 (CA 4)
from interpreting the meaning of
the word “person” used in
article 2 (1) of the
Constitution because it has no
relevance and would not permit a
broad definition. Bamford-Addo
JSC delivering the lead judgment
of the court held as follows at
page 385:
“This argument seems to ignore
the proper role of CA 4 in this
country, which is that unless
the contrary intention appears
in any enactment, the
interpretation of words provided
in CA 4 ought to be applied,
except where the context in
which the word was used would
not permit such an
interpretation or where the
enactment itself provides an
interpretation of any particular
words used therein. Therefore,
if the definition of the word
"person" in CA 4, s 32 fits the
context in which that word was
used in article 2(1) of the
Constitution, 1992, that meaning
ought to be applied.”
On the strength of this
authority we will now consider
if Parliamentary debates
provided for in sections 10(2) &
(3) of Act 792 and referred to
in the submissions of the
plaintiff is apposite for this
case. The pre-requisite for
seeking an aid from
Parliamentary debates is where
the court “considers the
language of an enactment
[Constitutional provision] to be
ambiguous or obscure.” In
this case we have found none of
the constitutional provisions
referred to us ambiguous to
resort to Parliamentary debates
which led to the enactment of
Act 959 before deciding this
matter. We, therefore decline
the invitation by the plaintiff
to apply the Parliamentary
debates in this
case.
We preface our analysis of this
issue by sourcing inspiration
from the great works of Roscoe
Pound, the American legal
scholar and former Dean of the
Harvard Law School. In his
writings on Social Engineering,
he postulates that laws are
created to shape society and
regulate the people’s behaviour.
According to Pound,
a lawmaker acts as a social
engineer by attempting to solve
problems in society using law as
a tool. In this regard, both the
Judiciary and Legislators play
an important role in enacting
the statutes which fulfil the
various desires of human beings.
The passage of Act 959 could be
attributed to Parliament’s
desire to shape the society and
regulate a menace the country
has been confronted with as
advocated by Roscoe Pound.
Corruption has plagued this
nation from independence. The
yearly corruption perception
indexes by Transparency
International testify to this
fact. To deal with this, laws
were passed in the past
criminalising corruption.
Commissions of Enquiry were set
up at the end on the tenure of
one government after another all
with the goal of fighting this
menace. Bodies such as the
Commission for Human Rights and
Administrative Justice, Economic
and Organised Crime Office were
also set up to fight corruption.
Civil Society coalitions such as
the Ghana Anti-Corruption
Coalition have joined the fight.
The menace still persists.
The passage of Act 959 was a
bold step taken by Parliament in
the fight targeting this time an
independent body with expertise,
integrity and history in
fighting corruption and hoping,
possibly, this time to succeed.
It will surprise us if
Parliament’s intention in
setting up this office was to
make it another ordinary public
service institution. We believe
taking our history and
aspiration to curb this menace,
the importance attached to the
Office cannot be in dispute.
Parliament consciously and
deliberately set up the Office
of the Special Prosecutor under
article 190(1)(d) as part of the
public services. However, like
other critical public service
bodies named already in this
judgment, Parliament formulated
stringent minimum qualifications
for the heads different from the
general qualifications provided
for in article 195(1). The mode
of appointment of the Special
Prosecutor and Deputy were also
taken out of article 195(1) to
ensure that the occupants of the
offices met the approval of key
institutions of State such as
the Executive and Parliament. In
our opinion, this approach is in
consonance with our history and
our search as a people for
progress.
We have already made reference
to article 252 of the
Constitution which established
the office of the District
Assemblies Common Fund
Administrator to administer and
distribute monies paid into the
Common Fund among District
Assemblies, propose a
distribution formula for
approval of Parliament and to
report to the sector Minister on
how allocations made from the
Fund have been utilised by the
District Assemblies. There is a
similarity between this Act and
Act 959 which necessitates our
reference to it once again.
Section 4 of Act 455 set out the
minimum qualifications of the
Administrator as follows:
“Section 4—Qualification of the
Administrator.
No person is qualified to be
appointed the Administrator who
(a) is not a citizen of Ghana;
(b) has been adjudged or
otherwise declared
(i) bankrupt under any law in
force in Ghana and has not been
discharged; or
(ii) to be of unsound mind or is
detained as a criminal lunatic
under any law in force in Ghana;
or
(c) has been convicted
(i) for high crime under the
Constitution or high treason or
treason or for an offence
involving the security of the
State, fraud, dishonesty or
moral turpitude; or
(ii) for any other offence
punishable by death or by a
sentence of not less than ten
years; or
(d) has been found by the report
of a commission or a committee
of inquiry to be incompetent to
hold public office or is a
person in respect of whom a
commission or committee of
inquiry has found that while
being a public officer he
acquired assets unlawfully or
defrauded the State or misused
or abused his office, or
willfully acted in a manner
prejudicial to the interest of
the State, and the findings have
not been set aside on appeal or
judicial review; or
(e) has not paid all his taxes
or made arrangements
satisfactory to the appropriate
authority for the payment of his
taxes; or
(f) is under sentence of death
or other sentence of
imprisonment imposed on him by
any court; or
(g) is otherwise disqualified by
a law for the time being in
force.
We note that almost all the
qualifications set up above for
the Administrator of the
District Assemblies Common Fund
were repeated verbatim in Act
959. In addition, because the
position of Special Prosecutor
can only be occupied by a
lawyer, an additional
qualification of expertise in
corruption related matters, high
moral character and proven
integrity and a lawyer of not
less than twelve years standing
were added. The significance of
the comparison we are making is
Act 959 is not the first time
our Parliament has enacted a law
for the public service and made
provision for stringent
qualifications for the office
holder. If the plaintiff did not
find anything wrong with Act 455
when it was enacted in 1993, we
find it difficult to appreciate
the attack on Parliament for
making a similar provision for
the qualifications of the
Special Prosecutor and Deputy in
Act 959.
In our opinion, sections 13 and
16 of Act 959 are not
inconsistent with other
provisions of the Constitution.
We decline the invitation by the
plaintiff to strike them down as
unconstitutional.
CONCLUSION
We conclude emphatically by
stating that
the category of public officers
to which the Special Prosecutor
has the closest affinity is the
article 70 office holders whose
conditions, including retirement
age is pegged to that of
Justices of the Court of Appeal.
Thus,
Parliament in prescribing the
mode of appointment of the
Special Prosecutor and Deputy
different from article 195(1)
did not flout the Constitution.
When the various constitutional
provisions referred to above are
read together and construed
purposively, it can be deduced
that, the Special Prosecutor is
a public officer whose office is
analogous to that of the
Commissioner for Human Rights
and Administrative Justice, the
Chairman of the Public Services
Commission, Chairperson of the
Electoral Commission, Chairman
for National Commission for
Civic Education, Administrator
of District Assemblies Common
Fund, etc., and not a public
officer under articles 190, 195
and 199 of the Constitution.
We consider the Special
Prosecutor an important one;
i.e. to curb corruption and
ensure probity, accountability
and transparency by all.
Ensuring independence in his
functions and protection against
victimisation for work done
under the constitution warrants
security of tenure for the
Special Prosecutor. The need,
therefore, to put measures in
place to curb the menace of
corruption does not only satisfy
the mandates of the Directive
Principles but supports the
liberal interpretation in
consonance with Sowah JSC’s
dictum (supra) that “We
must take account of its
principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time”.
Accordingly, the plaintiff’s
writ fails in its entirety and
all the reliefs are dismissed.
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
YEBOAH, CJ:-
I agree with the conclusion and
reasoning of my brother
Amegatcher, JSC.
ANIN YEBOAH
(CHIEF JUSTICE)
BAFFOE-BONNIE, JSC:-
I agree with the conclusion and
reasoning of my brother
Amegatcher, JSC.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
MARFUL-SAU, JSC:-
I agree with the conclusion and
reasoning of my brother
Amegatcher, JSC.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
PROF. KOTEY, JSC:-
I agree with the conclusion and
reasoning of my brother
Amegatcher, JSC.
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
DISSENTING OPINION
DORDZIE (MRS.), JSC:-
This action invokes the original
jurisdiction of the Supreme
Court under Articles 2 (1) and
130 (1) of the constitution.
These provisions of the
constitution read as follows
Article 2 (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.
Article 130 (1) 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; and
(b) all matters arising as to
whether an enactment was made in
excess of the powers conferred
on Parliament or any other
authority or person by law or
under this Constitution.
The action is instituted by Dr.
Dominic Akuritinga Ayine in his
capacity as a citizen of Ghana
against The State, represented
by the Attorney-General who is
the principal legal adviser to
the government.
The facts leading to this whole
action are as follows
On 2 January 2018, the Office of
the Special Prosecutor Act, 2018
(Act 959) was passed by
Parliament. Section 13(3) of Act
959 provides that the Attorney
General nominates a qualified
person as the Special Prosecutor
to be appointed by the President
subject to the approval of
Parliament. Mr. Martin Alamisi
Burns Kaiser Amidu was
nominated. Accordingly, with the
approval of parliament the
President appointed him as the
Special Prosecutor. It is the
contention of the Plaintiff
herein that per the curriculum
vitae of Mr. Martin Amidu
presented to the Appointment
Committee of Parliament for his
vetting and approval, which is
exhibited with the writ as
Exhibit A; Mr. Amidu was born on
6 September 1951. This means as
at 6 September 2017, Mr. Amidu
had attained the age of 66
years. It is the position of the
Plaintiff that by reason of his
age, Mr. Amidu does not qualify
under Act 959 to be nominated by
the Attorney-General, appointed
by the President of the Republic
with the approval of parliament.
According to plaintiff, Mr.
Amidu does not qualify because,
upon his appointment he
would become a public officer
within the definition of Article
295 of the
constitution; and under
Article 199(1) of the 1992
Constitution, he is older than
the constitutionally prescribed
compulsory retirement age of all
public officers which is 60
years. He does not also qualify
for the extension of tenure of
public service up to 65 years
provided for under Article
199(4) of the Constitution.
Therefore, by his appointment,
the Attorney-General, Parliament
and the President have violated
Article 199(1) of the 1992
Constitution.
The plaintiff by his writ is
praying this court for the
following reliefs:
a)
A declaration that by a true and
proper interpretation of
Articles 190(1)(d), 199(1),
199(4), and 295 of the 1992
Constitution, the retirement age
of all holders of public offices
created pursuant to Article
190(1)(d) is sixty (60) years,
anyhow not beyond sixty-five
(65) years;)
b)
A declaration that by a true and
proper interpretation of
Articles 190(1)(d) and 199(4) of
the 1992 Constitution, no person
above the age of 65 years is
eligible for employment in any
public office created under
Article 190(1)(d);
c)
A declaration that by reason of
his age, (66 years), Mr. Martin
Alamisi Burns Kaiser Amidu is
not qualified or eligible to be
nominated as the Special
Prosecutor under Section 13(3)
of the Office of the Special
Prosecutor Act, 2018 (Act 959);
d)
A declaration that by reason of
his age, (66 years), Mr. Martin
Alamisi Burns Kaiser Amidu is
not qualified or eligible to be
approved by Parliament as the
Special Prosecutor under Section
13(3) of the Office of the
Special Prosecutor Act, 2018
(Act 959);
e)
A declaration that by reason of
his age, (66 years), Mr. Martin
Alamisi Burns Kaiser Amidu is
not qualified or eligible to be
appointed by His Excellency the
president of the Republic as the
Special Prosecutor under Section
13(3) of the Office of the
Special Prosecutor Act, 2018
(Act 959);
f)
A declaration that any purported
nomination by the Attorney
General or approval by
Parliament or appointment by His
Excellency the President of the
Republic of Martin Alamisi Burns
Kaiser Amidu as the Special
Prosecutor under Section 13(3),
of the Office of the Special
Prosecutor Act, 2018 (Act 959),
is unconstitutional, and
therefore, null and void;
g)
A declaration that by a true and
proper interpretation of
Articles 190(1)(d), 195(1) and
295 of the 1992 Constitution,
Sections 13(1) and 16(2) of the
Office of the Special
Prosecutor, 2017 (Act 959) are
inconsistent with and/or
contravene Article 195(1) of the
1992 Constitution and are,
therefore, unconstitutional,
null and void;
h)
An order striking out the said
Sections 13(1) and 16(2) of the
Office of the Special
Prosecutor, 2017 (Act 959) as
unconstitutional, null and void;
i)
An order annulling the
nomination by the Attorney
General, approval by Parliament
and appointment by His
Excellency the President of the
Republic of Martin Alamisi Burns
Kaiser Amidu as the Special
Prosecutor under Section 13(3)
of the Office of the Special
prosecutor Act 2018(Act 959).
The defendant, that is the
Attorney-General opposed the
grant of these reliefs and
maintained that the plaintiff’s
case is based on his narrow and
literal approach to the
interpretation of Article 199 of
the Constitution. The
fundamental position the
defendant took in resisting the
grant of the reliefs prayed for
by the plaintiff is that, not
all public officers are public
servants, therefore, a person
may hold public office but not
hold an office in the public
service or be a public servant
bound by the retiring age
prescribed by article 199 in
chapter 14 of the Constitution.
This court made orders on 5
February 2019 for the parties to
file a joint memorandum of
issues. In compliance, the
following issues were filed by
the parties for determination:
1)
Whether or not the Constitution
prescribes one compulsory
retirement age of sixty (60)
years for all classes of public
officers;
2)
Whether or not by a true and
proper interpretation of
Articles 190(1)(d), 199(1),
199(4) and 295 of the 1992
Constitution, the retirement age
of all holders of public offices
created pursuant to Article
190(1)(d) is sixty (60) years,
anyhow not beyond sixty-five
(65) years;
3)
Whether or not Parliament has
residual legislative power to
prescribe for the appointment of
a specific public officer under
a specific Act of Parliament;
4)
Whether or not by a true and
proper interpretation of Article
190(1)(d) and 199(4) of the 1992
Constitution, no person above
the age of 65 years is eligible
for employment, including
post-retirement employment, in
any public office created under
Article 190(1)(d);
5)
Whether or not by reason of his
age, (66 years), Mr. Martin
Alamisi Burns Kaiser Amidu is
qualified or eligible to be
nominated, appointed and
approved as the Special
Prosecutor under Section 13(3)
of the Office of the Special
Prosecutor Act, 2018 (Act 959)
and to assume and act in an
office created under article
190(1);
6)
Whether or not by a true and
proper interpretation of
Articles 190(1) (d), (195(1) and
295 of the 1992 Constitution,
Sections 13(1) and 16(2) of the
Office of the Special
Prosecutor, 2017 (Act 959) are
inconsistent with and or
contravene Article 195 (1) of
the 1992 constitution.
Upon the court, accepting the
issues in the joint memorandum
of issues the court on 14 May
2019 ordered the parties to file
their respective legal arguments
on the issues as stated above.
We will proceed by giving a
summary of the submissions made
by the parties on the above
stated issues.
Legal submissions by plaintiff
Plaintiff considers the first
issue to be a non-issue because
he agrees with the defendant
that the constitution does not
prescribe one compulsory
retirement age of sixty years
for all classes of public
officers. Counsel submitted that
his case is not based on the
preposition that the
constitution prescribes one
retirement age of sixty years
for all classes of public
officers. He is ad idem with the
defendant that ‘Public Office’
is a much broader definition
than ‘Public Service’ as the
latter is a subset of the
former. Counsel referred to the
definition of a public officer
as provided in Article 295 of
the constitution and submitted,
that definition is broad and it
covers just about any holder of
public office including the
President, Vice President and
members of Parliament, the Civil
Service and certain statutory
corporations in which there are
no constitutionally prescribed
age limits for retirement. To
further illustrate the point
that the constitution does not
prescribe one retirement age of
sixty years for all classes of
public officers, counsel
referred to Article 145 (2) (a)
& (b) which pegs the retirement
age of Justices of the Superior
Courts beyond 60 years. Article
223 (2) which puts the
retirement ages of the
Commissioner and Deputy
Commissioners of the Commission
on Human Rights and
Administrative Justice at 70 and
65 years respectively. Article
194(5) also equates the
retirement age of the Chairman
and Deputy Chairman of the
Public Service Commission to
that of the justices of the
superior courts.
Plaintiff emphasized that his
case on compulsory retirement
age is in reference to public
officers in the Public Service
under chapter 14 of the 1992
Constitution in respect of which
the constitutional prescription
of compulsory retirement age
applies. The defendant’s
arguments on this issue is not
any different from the above. It
is clear therefore that the
parties are ad idem on the
position that the constitution
does not prescribe one
compulsory retirement age of
sixty years for all public
officers. Issue (1) therefore is
a non-issue and we would treat
it as such.
Counsel for the plaintiff next
addressed issues (3) and (4)
together and made the following
submissions: Article 190(1) (d)
gives Parliament power to create
additional Public Service
institutions apart from the
existing ones numerated in
190(1)(a). In doing so
Parliament must adhere to the
provisions of Chapter 14 of the
constitution, including those
relating to compulsory
retirement under Article 199.
Counsel urges the court to
purposively interpret Article
199(1) and 199(4) of the
constitution. The intention of
the framers of the constitution
is to ensure that by a certain
age, public officers working in
the public service must cease to
work, as such, for a public
officer working in the public
service to be eligible for
extension of his retirement age
under Article 199(4), he must
have already been in employment
in the public service at the
time he attained the age of
sixty years. He would then be
eligible to be employed under
some arrangement (usually by a
contract) for a further term,
not exceeding 5 years. Counsel
further argued that the intent
and purpose of Article 199(4) is
to provide for exigencies
arising immediately and directly
as a result of the retirement of
a public servant upon attaining
the mandatory retirement age of
sixty years. Counsel further
urged us to take into
consideration the policy
objectives that informed the
setting of age limits to the
holding of positions in the
public service. Counsel referred
us to Proposals of the
Constitutional Commission for
1979, the Report of the
Committee of experts
(Constitution) on proposals for
a draft Constitution of Ghana.
In conclusion of his arguments
on these two issues counsel
submitted that any
interpretation we may give to
Article 199(1) and 199(4) should
aim at affirming their twin
objectives: a) That there must
be an end to employment within
Public Services created under
Article 190. b) A very limited
and restricted window should be
available to enable the Public
Service to benefit from
exceptional experience of those
who would otherwise have retired
at the age of sixty years.
Counsel for plaintiff urged the
court to consider official
record of parliament in the
debates preceding the passing of
the Bill of the Office of the
Special Prosecutor. Particularly
Hansard i.e. the official record
of Parliament dated 1 November
2017 exhibit SS1. Counsel argued
that Parliament intended the
Office of the Special Prosecutor
to be a public office created
under Article 190(1) (d) and
190(3) of the constitution. As
such, the office is a public
office created under chapter 14
of the constitution. The public
prosecutor is therefore a public
officer occupying an office in
the public service; his tenure
of office ought to be regulated
by provisions under Article 14
of the constitution. To support
further the submission that the
office created by Act 959 is a
public office in the public
service, counsel made reference
to the object and functions of
the of the public prosecutor as
stipulated in sections 2 & 3 of
the Act. He argued that the
office of the Public Prosecutor
is integral to running central
government machinery and
therefore forms part of the
‘civil office of Government’
within the definition of “public
Service” under Article 295. That
being the case Mr. Martin Amidu
by reason of his age 66 years at
the time of his appointment is
not qualified to be nominated,
approved and appointed to the
office of the Public Prosecutor.
Counsel further submitted that;
the nature of the institution
created by Act 959 would have
been that of a public
corporation other than those set
up as a commercial venture as
stipulated in Article 190 (1)
(b) but for sections 13 (3) and
16 (2) of the Act. Act 959 is an
off-hoot of Article 190(1) (d)
therefore; it must be
interpreted strictly in line
with the constitutional
provision that created it. That
Section 13(5) makes the office
of the Special Prosecutor
analogous to that of a justice
of the Court of Appeal does not
imply a variation of the
constitutionally prescribed
compulsory retirement age of a
public service holder. An
interpretation of S13 (5) taking
the office of the Public
Prosecutor out of the ambit of
Article 199 of the constitution
would render Section 13 (5) of
the Act unconstitutional and
ought to be struck out in the
circumstance.
Plaintiff’s submissions on issue
(6) are that Parliament exceeded
its powers when it created
sections 13 (3) and 16 (2) of
Act 959 thereby providing a mode
of appointment to the Public
Service which are materially
different from what is
constitutionally prescribed
under Article 195 (1). Counsel
therefore urged this court to
exercise its powers under
Article 2 (2) of the
constitution to strike out the
said sections and all acts done
thereunder by the
Attorney-General, the President
of the Republic and Parliament
as unconstitutional, null and
void.
Counsel addressed issue (3)
lastly and submitted that the
Plaintiff does not dispute the
fact that Parliament has
residual legislative powers
under article 298 of the
constitution. However,
Parliament’s residual
legislative power is not at
large. Parliament cannot by
legislation alter the
architecture set up by the
constitution for specific
categories of institutions
without first amending the
constitution. When Parliament
set out to create a public
office under chapter 14 of the
constitution, it must adhere to
the architecture provided by the
constitution.
Submissions by the defendant
Defence counsel opened his
submissions and elaborated
extensively on the distinction
between a public officer and a
public servant. Public Servants
according to the defendant
retire at the age of 60 years
with a possibility of extension
of their years of service under
article 199 (4) of the
constitution. An office in any
institution specifically created
under article 190 (1) (a) of the
constitution is a public office
and is part of civil office of
government. Persons appointed
under article 195 of the
constitution are career public
servants and they retire in
accordance with the provisions
of article 199 of the
constitution. The defendant
argues a public officer on the
other hand occupies an office
the emoluments of which are paid
out of public funds or an office
set up by public funds.
Therefore, there are different
kinds of public officers that
are not appointed under chapter
14 of the constitution. Counsel
concludes on this point that
when article 199 (1) talks about
a ‘public officer’ retiring from
the ‘public service’ at the age
of 60, it is referring to only
that public officer appointed
under article 195 and not all
public officers.
The defendant further submits
that the Special prosecutor and
his deputy were not appointed
pursuant to article 199 of the
constitution. They were
appointed pursuant to sections
13 and 16 of Act 959. The said
Act was enacted by parliament in
the exercise of its residual
legislative powers in accordance
with article 298 of the
constitution. Apart from the
provision in article 190(1) of
the Constitution for the Public
Services of Ghana and other
related provisions in chapter
Fourteen there is no provision
in the constitution regulating
how a public office in general
ought to be created. Article 298
vests in Parliament the power to
deal with any matter where no
provision express or by
necessary implication has been
made by the constitution. There
is no limitation placed on
parliament in the exercise of
its residual powers to make
legislation to cater for
situations deemed relevant to
the national interest. It is the
position of the defendant that
it is the ‘other staff’ of the
Office of the Special Prosecutor
who are subject to article 195
of the Constitution and not the
Special Prosecutor and his
deputy. The appointment of Mr.
Martin Amidu as the Special
Prosecutor is thus
constitutional.
It is a further submission of
the defendant that the
constitution does not provide
any limitation on age for all
public office holders. Age
restriction is placed on only a
public officer holding office in
the public service referred to
as a public servant. Article 199
does not place any restrictions
on the President to engage a
public officer above the age of
65 years who had previously
retired from the public service
to hold office in the public
service. To emphasize the point
that no age restrictions are
placed on the office of the
Special Prosecutor counsel
submitted that a person who is
appointed a Special Prosecutor
is a delegate of some of the
powers of the Attorney-General
under article 88 (4) of the
Constitution. The said article
in permitting the delegation of
the Attorney-General’s powers of
prosecution does not place any
constraints on the age on the
person to whom the power may be
delegated.
The defendant strongly objected
to references the plaintiff made
to the provisions of the
interpretation Act that permits
the court to refer to reports of
parliament as aid to
interpretation and said the
Interpretation Act cannot be an
aid to the interpretation of the
constitution of Ghana. It is a
mere Act of Parliament whose
provisions cannot be used as a
guide to interpret the
provisions of the Constitution
which is the primary law of the
land. The Act can only be
referred to in interpreting
statutes and not the
Constitution.
Consideration of Issues
The
action herein raises for our
determination the core question
whether the provisions of the
Constitution in Chapter 14
specifically, 190, 195, 199(1)
and (4) provide the mode of
appointment and retiring age of
public officers. If the question
is answered in the affirmative
then whether an act of
Parliament, Act 959 can purport
to alter the provisions of the
said articles. An answer to
these questions would
substantially resolve most of
the issues before us excepting
that relating to section 13 (1)
of Act 959.
The key that unravels these
issues is to first determine the
purpose for which the Office of
the Public Prosecutor Act was
enacted. Both parties have urged
us to rely on the purposive
approach to the interpretation
of statutes to determine the
issues before us. For that
purpose the plaintiff exhibited
with his statement of case, the
Hansard i.e. the official report
of Parliament dated 1 November
2017 exhibit SS1. In his
submissions, he quoted
extensively portions of the
proposals of the Constitutional
Commission for the 1979
constitution, particularly page
80 paragraphs 223 to 225.
Counsel also referred us to page
170 of the Report of Committee
of Experts (Constitution) on
Proposals for a draft
Constitution of Ghana dated July
31, 1991.
The duty of the judiciary is to
interpret the law and it is
common knowledge that the
legislator is the lawmaker. The
purposive approach to
interpretation of statutes is
widely embraced by most
jurisdictions in modern times.
It is no doubt, the method of
statutory interpretation that
effectively gives the judge the
discretion to discover the
intentions of parliament. The
Indian Supreme Court emphasized
this point in the case of
Chief
Justice of Andhara
Pradesh V. L.V.A. Dikshitulu,
AIR 1979 SC 193 and held
that “the primary principle of
interpretation is that a
Constitutional or statutory
provision should be construed
according to the intent of they
that made it”. Our
courts have embraced this
principle from time immemorial.
This is demonstrated in the
celebrated case of Tuffour v
Attorney-General when the
Supreme Court held: “this
court makes haste and turns to
the Proposals of the
Constitutional Commission first
as an aide-memoire, and
secondly, to extract the
intentions of the framers of the
Constitution therefrom”
Dr. Date-Bah JSC in his book
Reflections on the Supreme Court
of Ghana at page 117 made
reference to the dictum of
Atuguba JSC in the
In
Re Presidential Election
Petition [2013] SCGLR (Special
Edition]
where the learned jurist
said the purposive approach has
been ‘enthroned’ in the Supreme
Court as the dominant rule for
the construction of the
Constitution. The learned author
went on to say “simply
because a provision in the
Constitution is clear does not
exclude the obligation of a
court to search for and find the
purpose meant to be served by
that provision in order that the
provision may be interpreted so
as to promote that purpose. In
other words, the clarity of a
provision is not a bar to the
application of the purposive
approach to it in order to avoid
an unintended result which is in
conflict with its purpose,
distilled from its context.”
Section 10 of the Interpretation
Act, 2009 Act 792
gives statutory support to the
use of specific materials that
aid interpretation or
construction.
It reads
10. (1) Where a Court is
concerned with ascertaining the
meaning of an enactment, the
Court may consider
(a) the indications provided by
the enactment as printed,
published and distributed by the
Government Printer;
(b) a report of a Commission,
committee or any other body
appointed by the Government or
authorised by Parliament, which
has been presented to the
Government or laid before
Parliament as well as Government
White Paper;
(c) a relevant treaty,
agreement, convention or any
other international instrument
which has been ratified by
Parliament or is referred to in
the enactment of which copies
have been presented to
Parliament or where the
Government is a signatory to the
treaty or the other
international agreement; and
the travaux preparatoires or
preparatory work relating to the
treaty or the agreement, and
(d) an agreement which is
declared by the enactment to be
a relevant document for the
purposes of that enactment.
(2) A Court may, where
it considers the language of an
enactment to be ambiguous or
obscure, take cognisance of
a) the legislative antecedents
of the enactment
(b) the explanatory memorandum
as required by article 106 of
the Constitution and the
arrangement of sections which
accompanied the Bill;
(c) pre-parliamentary materials
relating to the enactment;
(d) a text-book, or any other
work of reference, a report or a
memorandum published by
authority in reference to the
enactment, and the papers laid
before Parliament in reference
to the enactment;
(e) the parliamentary debates
prior to the passing of the Bill
in Parliament.
(3) Subject to article 115 of
the Constitution, a Court shall
have recourse to parliamentary
debates under subsection (2),
where the legislative intention
behind the ambiguous or obscure
words is clearly disclosed in
the parliamentary debate.
(4) Without prejudice to any
other provision of this section,
a Court shall construe or
interpret a provision of the
Constitution or any other law in
a manner
(a) that promotes the rule of
law and the values of good
governance,
(b) that advances human rights
and fundamental freedoms,
(c) that permits the creative
development of the provisions of
the Constitution and the laws of
Ghana, and
(d) that avoids technicalities
and recourse to niceties of form
and language which defeat the
purpose and spirit of the
Constitution and of the laws of
Ghana.
Section 10 (2) (4) clearly
demonstrates that this section
of the Interpretation Act is not
limited to the interpretation of
statutes only but the
constitution as well. This
court’s decision in
Osei-Akoto v Attorney-General
[2012]2 SCGLR 12
95
supports this position. The
argument of the defendant that
the Interpretation Act can only
be a guide in interpretation of
statutes and not the
Constitution is untenable.
This takes us back to the key
question: what was Parliament’s
intention and purpose of
enacting the Office of the
Special Prosecutor Act? The
Hansard of Ghana’s Parliament,
dated Wednesday 1 November,
exhibit SS1 in this proceeding
is a useful source of
discovering the purpose of
enacting the subject Act, Act
959. Sections 2 and 3 of the
Act that set out the objectives
and functions of the Office of
the Special Prosecutor give
insight to the purpose of the
Act.
It will be of interest to look
at the view of jurists of other
jurisdictions on the importance
of reference to Hansard as aid
to the purposive approach to
interpretation. In the House of
Lords decision in
Pepper v Hart [1992] 3 WLR 1032
Lord Brown Wilkonson
has this to say on reference to
Hansard: “In
my judgment, subject to the
questions of the privileges of
the House of Commons, reference
to Parliamentary material should
be permitted as an aid to the
construction of legislation
which is ambiguous or obscure or
the literal meaning of which
leads to an absurdity. Even in
such cases references in court
to Parliamentary material should
only be permitted where such
material clearly discloses the
mischief aimed at or the
legislative intention lying
behind the ambiguous or obscure
words.”
Lord Griffiths on his part in
the same case expressed his view
on the purposive approach to
legislative interpretation as
follows:
"The
days have passed when the courts
adopted a literal approach. The
courts use a purposive approach,
which seeks to give effect to
the purpose of legislation and
are prepared to look at much
extraneous material that bears
upon the background against
which the legislation was
enacted”
Exhibit SS1 contains the
official report of Parliament on
the Office of the Special
Prosecutor Bill, 2017. These are
the words of Mr. Banda who is
described as the Chairman of the
Committee: “Mr. Speaker we are
creating a public office. The
Office of the Special Prosecutor
is a public office being created
under article 190 (1) (d) of the
constitution and under article
190(3) of the constitution. It
is mandatory that any time a
public office is created a
governing council is also
established. Mr. Speaker, with
your permission, I beg to quote
article 190(1) (d) and 190 (3)”
he went ahead and quoted those
articles.
Parliament has categorically
made it clear that the Office of
the Special Prosecutor Act was
enacted to create a public
office under Article 190 (1) (d)
of the constitution. In
conformity with article 190 (3)
Parliament reached a consensus
to maintain the provision of the
bill that provides for the
establishment of a governing
council to oversee the functions
of the office.
Parliament having clearly stated
in the consideration stage of
the Office of the Special
Prosecutor Bill, that they were
exercising the powers conferred
on Parliament under Article 190
(1) (d) to enact the Act; it is
very incorrect to argue as the
defendant did, that the Office
of the Special Prosecutor was
established pursuant to the
exercise of the residual powers
of Parliament as provided under
Article 298 of the
constitution. Parliament in its
own words had expressly stated
the constitutional provision
under which it exercised its
powers to enact Act 959. There
is no basis for this court to
say otherwise. If Parliament
intended to rely on its residual
powers under article 298 it
would have said so. Besides,
to do so in accordance with the
mandatory provisions of the
Constitution contained in
article 106, the memorandum to
the Bill would have clearly
indicated that Parliament sought
to exercise the power conferred
on it under article 298. In
doing so, the law mandates the
memorandum to specify the
defects in the existing law and
specify the remedies proposed in
the new law to deal with them
and the necessity for doing so.
Article 106 (1) & (2) provide “1)
The power of Parliament to make
laws shall be exercised by bills
passed by parliament and
assented to by the President.
(2) No bill, other than such a
bill as is referred to in
paragraph (a) of article 108 of
this Constitution, shall be
introduced in parliament unless
-
(a) it is accompanied by an
explanatory memorandum setting
out in detail the policy and
principles of the bill, the
defects of the existing law, the
remedies proposed to deal with
those defects and the necessity
for its introduction; and
(b) it has been published in the
Gazette at least fourteen days
before the date of its
introduction in Parliament.
Though the defendant argued that
The Office of the Special
Prosecutor Act was passed
because the constitution does
not provide how a public office
may be created; he failed to
demonstrate in his written
brief, filed before the court
that, the memorandum to Act 959
contained any statement about
matters related to how a public
office in general ought to be
created.
The memorandum to Act 959 is
under the hand and signature of
the Attorney-General and she is
bound by the contents. The court
cannot go behind the clear
reason for enacting the Act and
hold otherwise.
The contention that Parliament
exercised its residual powers is
without any constitutional basis
and must be dismissed.
If Parliament had said that “we
are creating a public office
under Article 190 (1) (d) of the
constitution, the court has no
basis to say parliament rather
exercised its residual powers
under Article 298 of the
constitution.
Parliament definitely has
residual powers as provided in
Article 298 of the constitution.
However, in enacting Act 959 it
did not exercise those powers.
This resolves issue
(3) which is Whether or not
Parliament has residual
legislative power to prescribe
for the appointment of a
specific public officer under a
specific Act of Parliament.
Having established from the
above analysis that The Office
of the Special Prosecutor Act
was enacted pursuant to Article
190(1) (d) of the constitution,
it follows that the office of
the Special Prosecutor is
governed by provisions under
chapter 14 of the 1992
Constitution. Issue (2) would
therefore be considered within
this context
Issue (2) is Whether or not by a
true and proper interpretation
of Articles 190(1)(d), 199(1),
199(4) and 295 of the 1992
Constitution, the retirement age
of all holders of public offices
created pursuant to Article
190(1)(d) is sixty (60) years,
anyhow not beyond sixty-five
(65) years
Article 190(1) numerates
institutions that constitute
Public Services of Ghana as
follows:
“(1) The Public Services of
Ghana shall include -
(a) the Civil Service,
the Judicial Service,
the Audit Service,
the Education Service,
the Prisons Service,
the Parliamentary Service,
the Health Service,
the Statistical
Service,
the National Fire Service,
the Customs, Excise and
Preventive Service,
the Internal Revenue Service,
the Police Service,
the Immigration Service; and
the Legal Service;
(b) public corporations other
than those set up as commercial
ventures;
(c) public services established
by this Constitution; and
(d) such other public services
as Parliament may by law
prescribe.
(2) The Civil Service shall,
until provision is otherwise
made by Parliament, comprise
service in both central and
local government.
(3) Subject to the provisions of
this constitution, an Act of
Parliament enacted by virtue of
clause (1) of this article shall
provide for -
(a) the governing council for
the public service to which it
relates;
(b) the functions of that
service; and
(c) the membership of that
service.
(4) 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.
Article 199 prescribes a
compulsory retirement age for
public officers in the public
service and states as follows:
(1) A public officer shall,
except as otherwise provided in
this Constitution, retire from
the public service on attaining
the age of sixty years.
(2) A public officer may, except
as otherwise provided in this
Constitution, retire from the
public service at any time after
attaining the age of forty-five
years.
(3) The pension payable to any
person shall be exempt from tax.
Per the Constitution of the
Republic of Ghana (Amendment)
Act, 1996 Act 527, clause (4)
was added to Article 199; clause
4 reads:
“Notwithstanding clause (1)
of this article a public
officer who has retired
from the public service
after attaining the age of sixty
years may where the exigencies
of the service require, be
engaged for a limited period of
not more than two years at a
time and but not exceeding five
years in all and upon such other
terms and conditions as the
appointing authority shall
determine.”
Article 295 defines “Public
Office” and “Public Service” in
the following words:
"public office" includes
an office the emoluments
attached to which are paid
directly from the consolidated
Fund or directly out of moneys
provided by Parliament and an
office in a public corporation
established entirely out of
public funds or moneys provided
by Parliament;
"public service" includes
service in any civil office of
Government, the emoluments
attached to which are paid
directly from the Consolidated
Fund or directly out of moneys
provided by Parliament and
service with a public
corporation;
There is no doubt or controversy
as far as the above definitions
are concerned that “public
office” embraces a wide scope of
public officers including public
officers in the public service
Article 190 specifically
provides in clear terms
institutions that are classified
as the public services of Ghana.
Clause (4) of article 199
describes office holders in the
public service created under
chapter 14 of the constitution
as public officers. This
confirms our earlier statement
that ‘public office’ as defined
by article 295 embraces a wide
scope of public officers.
The wordings of Articles 190 (1)
(d) 199 (1) and 199 (4) are
clear and unambiguous and do not
need any interpretation. However
taking a look at the history
behind these provisions as
contained in reports of
constitutional expects gives a
better understanding of the
intent of the framers of the
constitution so far as these
provisions are concerned.
In the proposals of the
Constitutional Commission for
the 1979, the brains behind the
framing of the 1979 Constitution
made it clear that they
recommend the provisions on
retiring age of members of the
public services to be enshrined
in the Constitution and not
to be left to regulations of
Parliament (Emphasis added).
This is found in paragraph 224
of the report. Article 162 of
the 1979 Constitution therefore
pegged the retiring age of
members of the public service at
sixty years. In making proposals
for the 1992, Constitution the
Committee of Experts
(Constitution) maintained the
same position. (See page 170
paragraph 369 of the Report on
Proposals for a Draft
Constitution of Ghana dated July
31 1991) This led to the
provisions of Article 199 of the
1992 Constitution as quoted
above. Article 199 was amended
by The Constitution of the
Republic of Ghana (Amendment)
Act 1996 Act 257; clause (4)
was inserted thus:
“Notwithstanding clause (1)
of this article a public
officer who has retired
from the public service
after attaining the age of sixty
years may where the exigencies
of the service require, be
engaged for a limited period of
not more than two years at a
time and but not exceeding five
years in all and upon such other
terms and conditions as the
appointing authority shall
determine.”
That this clause was intended to
be put to use in only
exceptional cases, and the
retirement age for a public
officer could be 65 years at
most is again demonstrated in
the deliberations that preceded
the enactment of the provision.
Particularly part of the speech
of the then Attorney-General to
parliament found in the Official
Report on the Parliamentary
Debates of Tuesday October 29,
1996. Counsel for the plaintiff
made reference to this in his
submissions and I find it worth
quoting: “This
dispensation was allowed
after exhaustive discussion of
the fears expressed about low
morale and the possible
restriction of promotion
prospects of junior staff if
this was allowed. It was felt
that this privilege should be
accorded in only exceptional
circumstances not involving
those risks”
(Emphasis supplied)
A purposive approach to the
interpretation on the provisions
of chapter 14 of the 1992
Constitution particularly
Article 190 (1) (d) 199 (1) and
199 (4) must reflect the intent
and objectives behind the
enactment of these provisions.
This is where reports of experts
and materials that contribute to
the history of the promulgation
of the Constitution become handy
aids to us the interpreters of
these provisions. We can safely
say that the intent of the
framers of the Constitution is
that, holders of public office
created pursuant to Article 190
(1) (d) of the Constitution
would retire from office upon
attainment of 60 years. In
exceptional circumstances, the
retiring officer may be engaged
for a period not more than 5
years. The ceiling of the
retiring age of any occupant of
a public service office created
pursuant to article 190 (1) (d)
of the constitution is 65 years.
It follows therefore that no
person above the age of 65
years, is eligible for
employment, including
post-retirement employment in
any public office created under
article 190 (1) (d) of the
constitution. The logical
conclusion is that any act of
Parliament that takes the
regulation of the retiring age
of a public officer in the
public service out of the ambit
of the Constitutional provisions
in Chapter 14 of the
Constitution is contrary to the
intents and purposes of the
provisions in Chapter 14
The office of the Special
Prosecutor is a creature
pursuant to article 190 (1) (d)
of the constitution and
therefore subject to the
provisions of chapter 14 of the
constitution. It is an office
within the public services of
the Republic of Ghana. As
defined by Article 295 of the
constitution. The emoluments
attached to the office are paid
directly from the Consolidated
Fund or directly out of moneys
provided by Parliament. This is
supported by section 22 of the
Act which provides “The
funds of the office include (a)
monies approved by Parliament;
(b) internally generated funds
and (c) grants approved by the
minister responsible for Finance
in consultation with the
Attorney-General".
The functions of the office of
the Special Prosecutor involves
service in any civil office
of Government as provided in
the definition of public service
under article 295. The functions
of the office as stated in
section 3 of the Act is derived
from Article 58(2) of the
constitution which provides as
follows: “The executive
authority of Ghana shall extend
to the execution and maintenance
of this constitution and all
laws made under or continued in
force by this constitution”
The functions of the office of
the Special Prosecutor as
provided in section 3 of the Act
include investigation and
prosecution of corruption and
corruption related crimes. These
functions fall under the
executive arm of government and
forms part of the “civil office
of government.”
Essentially, therefore the
Office of the Special Prosecutor
is one of the public service
institutions created by
Parliament under Article 190(1)
(d) of the Constitution. The
occupant of the Office of the
Special Prosecutor is subject to
the retirement restrictions
placed on all public service
office holders under Article 199
of the constitution.
Mr. Martin Amidu at the time of
his nomination and appointment
to the office of the Special
Prosecutor was 66 years. His age
was beyond the prescribed age of
65 years for holders of public
office created under article 190
(1) (d) of the Constitution. He
was therefore not eligible to be
nominated and appointed to that
office. (This resolved issue (5)
which is:
Whether or not by reason of his
age, (66 years), Mr. Martin
Alamisi Burns Kaiser Amidu is
qualified or eligible to be
nominated, appointed and
approved as the Special
Prosecutor under Section 13(3)
of the Office of the Special
Prosecutor Act, 2018 (Act 959)
and to assume and act in an
office created under article
190(1);
Issue (6) Whether or not by a
true and proper interpretation
of Articles 190 (1) (d), (195
(1) and 295 of the 1992
Constitution, Sections 13(3) and
16(2) of the Office of the
Special Prosecutor, 2017 (Act
959) are inconsistent with and
/or contravene Article 195 (1)
of the 1992 constitution.
Article 195(1) vests in the
President the power to make
appointments to public service
offices created under Article
190 of the Constitution.
Article 195(1) reads:
“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.”
The Office of the Special
Prosecutor having been created
under Article 190(1) (d) of
Chapter 14 of the constitution,
appointments to that office
ought to be by the provisions of
Article 195(1) of the
constitution.
Sections 13(3) and 16(2) of Act
595 purport to prescribe a
different mode of appointment to
the office of the Special
Prosecutor and his deputy. The
said sections state “13(3)
The Attorney-General shall
nominate a person qualified for
appointment as Special
Prosecutor by the President,
subject to the approval of the
majority of all the members of
Parliament”
“16(2) The Attorney-General
shall nominate a person
qualified for the appointment as
Deputy Special Prosecutor by the
President, subject to the
approval of the majority of all
the members of Parliament”.
Sections 13 (3) and 16(2) of Act
959 are inconsistent with
section 195(1) of the
constitution. We hold that they
are unconstitutional, null and
void and ought to be struck
down.
A careful reading of the 1992
Constitution reveals that the
word “public servant’ was not
used in describing persons who
hold public offices. The
description is “public officer”.
The attempt before us to
differentiate between a public
officer and a public servant is
not derived from the
Constitution. The Constitution
does not define a public servant
although the entirety of chapter
14 is devoted to the public
service. The Constitution
makers were in my view avoiding
the derogatory meaning attached
to the word ‘servant’ and
therefore it is wrong for such a
differentiation to be made in
the arguments before us. Any
person who occupies an office
that satisfies the definition in
article 295 of “public officer’
is entitled to the protections
contained in chapter 14 of the
constitution. Again, the
Constitution creates certain
constitutional offices such as
the cabinet, ministers and the
like who are public officers as
well. However, they have no
governing board and by the clear
provisions of the Constitution
contained in articles, 76 to 81
derive their appointment from
the President without any fixed
tenure. We know that the
president has a tenure of 4
years and as such without a
revocation of their
appointments, ministers end
their tenure with the President.
As the cabinet and related
offices were created by the
Constitution which subjects
articles 195 and 199 to other
provisions of the Constitution,
the contention that because
minsters are public officers
therefore they should also
retire at 60 or 65 is quite
unreasonable. We all know from
the mode by which the President
and members of his cabinet for
example, get into office are
quite different from other
public office holders. As such
to contend as the defendants
pressed before us is to invite
the court to reach a view of the
matter that is not derived from
a careful reading of the
provisions of the Constitution
in relation to public officers
under Chapter 14 and other
office holders. Similarly, the
point made related to specified
constitutional bodies like the
Public Service Commission is
that they are creatures of the
Constitution and reading the
constitution as one document
enables one to engage in some
form of accommodation such that
the various parts complement
each other.
The issue before the court
arises out of an Act of
Parliament, so the question
before us must be in relation to
the said Act only for the
purpose of determining its
constitutionality. One cannot
call in aid provisions of the
Constitution to support an Act
when the Act in question is
proved to be inconsistent with
particular provisions of the
Constitution.
Section 13 (1) of Act 595
In so far as Section 13(1) of
the impugned Act sought to add
to the disqualification list
affecting citizens who owe
allegiance to countries other
than Ghana from holding
specified offices in the
country, on the authority of
Asare v
Attorney-General [2012] 1 SCGLR
460, it is unconstitutional
Section 13(1) of the impugned
legislation reads as follows
A person is not qualified for
appointment as the Special
Prosecutor if that person
a.
owes allegiance to a country
other than Ghana
b.
has been adjudged or otherwise
declared (i) bankrupt under any
law in force in Ghana and has
not been discharged; or (ii) to
be of unsound mind under any law
in force in Ghana.
c.
Has been convicted (i) for high
crime under the Constitution or
high treason or for an offence
involving the security of the
State, fraud, dishonesty or
moral turpitude; or (ii) for any
other offence punishable by
death or by a sentence of not
less than ten years; or
d.
Has been found by the report of
a commission or committee of
inquiry to be incompetent to
hold public office or is a
person in respect of whom a
commission or committee of
inquiry has found that while
being a public officer that
person acquired assets
unlawfully or defrauded the
State or misused or abused the
office of that person, or
wilfully acted in a manner
prejudicial to the interest of
the state, and the findings have
not been set aside on appeal or
judicial review.”
The action of the plaintiff
succeeds. All the reliefs sought
in the writ are hereby granted
which reliefs are-
a)
A declaration that by a true and
proper interpretation of
Articles 190(1)(d), 199(1),
199(4), and 295 of the 1992
Constitution, the retirement age
of all holders of public offices
created pursuant to Article
190(1)(d) is sixty (60) years,
anyhow not beyond sixty-five
(65) years;)
b)
A declaration that by a true and
proper interpretation of
Articles 190(1)(d) and 199(4) of
the 1992 Constitution, no person
above the age of 65 years is
eligible for employment in any
public office created under
Article 190(1)(d);
c)
A declaration that by reason of
his age, (66 years), Mr. Martin
Alamisi Burns Kaiser Amidu is
not qualified or eligible to be
nominated as the Special
Prosecutor under Section 13(3)
of the Office of the Special
Prosecutor Act, 2018 (Act 959);
d)
A declaration that by reason of
his age, (66 years), Mr. Martin
Alamisi Burns Kaiser Amidu is
not qualified or eligible to be
approved by Parliament as the
Special Prosecutor under Section
13(3) of the Office of the
Special Prosecutor Act, 2018
(Act 959);
e)
A declaration that by reason of
his age, (66 years), Mr. Martin
Alamisi Burns Kaiser Amidu is
not qualified or eligible to be
appointed by His Excellency the
president of the Republic as the
Special Prosecutor under Section
13(3) of the Office of the
Special Prosecutor Act, 2018
(Act 959);
f)
A declaration that any purported
nomination by the Attorney
General or approval by
Parliament or appointment by His
Excellency the President of the
Republic of Martin Alamisi Burns
Kaiser Amidu as the Special
Prosecutor under Section 13(3),
of the Office of the Special
Prosecutor Act, 2018 (Act 959),
is unconstitutional, and
therefore, null and void;
g)
A declaration that by a true and
proper interpretation of
Articles 190(1)(d), 195(1) and
295 of the 1992 Constitution,
Sections 13(1) and 16(2) of the
Office of the Special
Prosecutor, 2017 (Act 959) are
inconsistent with and/or
contravene Article 195(1) of the
1992 Constitution and are,
therefore, unconstitutional,
null and void;
h)
An order striking out the said
Sections 13(1) and 16(2) of the
Office of the Special
Prosecutor, 2017 (Act 959) as
unconstitutional, null and void;
i)
An order annulling the
nomination by the Attorney
General, approval by Parliament
and appointment by His
Excellency the President of the
Republic of Martin Alamisi Burns
Kaiser Amidu as the Special
Prosecutor under Section 13(3)
of the Office of the Special
prosecutor Act 2018(Act 959).
j)
A declaration that by a true
and proper interpretation of
Articles 190(1)(d), 199(1),
199(4), and 295 of the 1992
Constitution, the retirement age
of all holders of public offices
created pursuant to Article
190(1)(d) is sixty (60) years,
anyhow not beyond sixty-five
(65) years;)
k)
A declaration that by a true and
proper interpretation of
Articles 190(1)(d) and 199(4) of
the 1992 Constitution, no person
above the age of 65 years is
eligible for employment in any
public office created under
Article 190(1)(d);
l)
A declaration that by reason of
his age, (66 years), Mr. Martin
Alamisi Burns Kaiser Amidu is
not qualified or eligible to be
nominated as the Special
Prosecutor under Section 13(3)
of the Office of the Special
Prosecutor Act, 2018 (Act 959);
m)
A declaration that by reason of
his age, (66 years), Mr. Martin
Alamisi Burns Kaiser Amidu is
not qualified or eligible to be
approved by Parliament as the
Special Prosecutor under Section
13(3) of the Office of the
Special Prosecutor Act, 2018
(Act 959);
n)
A declaration that by reason of
his age, (66 years), Mr. Martin
Alamisi Burns Kaiser Amidu is
not qualified or eligible to be
appointed by His Excellency the
president of the Republic as the
Special Prosecutor under Section
13(3) of the Office of the
Special Prosecutor Act, 2018
(Act 959);
o)
A declaration that any purported
nomination by the Attorney
General or approval by
Parliament or appointment by His
Excellency the President of the
Republic of Martin Alamisi Burns
Kaiser Amidu as the Special
Prosecutor under Section 13(3),
of the Office of the Special
Prosecutor Act, 2018 (Act 959),
is unconstitutional, and
therefore, null and void;
p)
A declaration that by a true and
proper interpretation of
Articles 190(1)(d), 195(1) and
295 of the 1992 Constitution,
Sections 13(1) and 16(2) of the
Office of the Special
Prosecutor, 2017 (Act 959) are
inconsistent with and/or
contravene Article 195(1) of the
1992 Constitution and are,
therefore, unconstitutional,
null and void;
q)
An order striking out the said
Sections 13(1) and 16(2) of the
Office of the Special
Prosecutor, 2017 (Act 959) as
unconstitutional, null and void;
r)
An order annulling the
nomination by the Attorney
General, approval by Parliament
and appointment by His
Excellency the President of the
Republic of Martin Alamisi Burns
Kaiser Amidu as the Special
Prosecutor under Section 13(3)
of the Office of the Special
prosecutor Act 2018(Act 959).
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
GBADEGBE, JSC:-
I agree with the conclusion and
reasoning of my sister Dordzie,
JSC.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
TONY LITHUR WITH HIM MARIETTA
BREW APPIAH-OPONG FOR THE
PLAINTIFF.
GODFRED YEBOAH DAME, DEPUTY
ATTORNEY-GENERAL WITH HIM MS
YVONNE BANNERMAN, SENIOR STATE
ATTORNEY FOR THE DEFENDANT.
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