Constitutional law –
Interpretation - Supreme Court
- Invoking the original
jurisdiction of the court -
Articles 70(1)(d)(iii), 190
and/or 191(b) , Articles 2 (1)
and 130 – 1992 constitution -
section 14 of the Presidential
(Transition) Act 2012 (Act 845)
– Whether or not the President
of the Republic of Ghana in line
with Article 297(a) of the 1992
Constitution has the legal
authority to remove from office
members of the governing boards
of public corporations appointed
pursuant to Articles
70(1)(d)(iii), 190(1)(b) and
190(3) of the 1992 Constitution
without assigning any just
cause. - Whether or not section
14 of the Presidential
(Transition) Act 2012 (Act 845)
is inconsistent with articles
70(1)(d)(iii), 190 and/or 191(b)
of the Constitution, 1992 -
Whether or not article 19(b) of
the Constitution, 1992, also
applies to the category of
officers mentioned in section 14
of Act 845.
HEADNOTES
By a writ of summons issued on 4th
January 2017, the Plaintiff
invoked the original
jurisdiction of this court
pursuant to Articles 2 (1) and
130 seeking certain reliefs. The
said writ was amended pursuant
to leave of this court granted
on the 8th March
2017. The Plaintiff therefore
filed an amended writ and
statement of case on 10th
March 2017. The Defendant filed
an amended Statement of case on
23rd March 2019. The
following reliefs are indorsed
on the amended writ that
the removal from office of such
Chief Executives, Chief
Executive Officers,
Director-Generals (howsoever
called) and members of governing
boards of public corporations
merely on account of the
assumption of office of the
person elected as President of
the Republic of Ghana does not
amount to a just cause and is
accordingly unconstitutional and
that section 14 of the
Presidential (Transition) Act
2012 (Act 845) requires all
Chief Executives, Chief
Executive Officers,
Director-Generals (howsoever
called) and members of governing
boards of public corporations to
cease to hold office merely on
account of the assumption of
office of the person elected as
President of the Republic of
Ghana, the said section 14 is
unconstitutional as being
inconsistent with the letter and
spirit of the Constitution,
particularly Articles
70(1)(d)(iii), 190 and/or 191(b)
of the Constitution and an order
of perpetual injunction
restraining any person or
authority from removing from
office such Chief Executives,
Chief Executive Officers,
Director-Generals (howsoever
called) and members of governing
boards of public corporations
merely on account of the
assumption of office of the
person elected as President of
the Republic of Ghana
HELD
Members of governing boards of
statutory boards and
corporations appointed in
accordance with article 70(1)(d)(iii)
of the Constitution are
not
members of the Public Service
and their tenure
is
not governed by articles
191 and 195
of the Constitution.
Therefore, each person may be
removed at will by the
President. We declare
accordingly.
Upon a true and proper
interpretation, a Public Service
Officer
appointed in accordance with
article 195 of the Constitution
and
may not be removed save
in accordance with
the terms and conditions of his
or her contract of engagement or
in the absence of
such,
for
‘just
cause’
pursuant to
articles
191 and 195 of the Constitution.
To the extent that section 14 of
the Presidential (Transition)
Act 2012,
(Act
845)
requires Chief Executives or
Directors-General
(howsoever described)
of
public
boards
or corporations to cease to hold
office upon the assumption of
office by a person elected as
President of the Republic of
Ghana, the same is hereby
declared to be unconstitutional
and void for being in
contravention of articles 190
and 191 of the Constitution.
STATUTES REFERRED TO IN JUDGMENT
1992 constitution
Presidential (Transition) Act
2012 (Act 845)
Presidential Office Act 1993
(Act 463).
Interpretation Act 2009 (Act
792)
National Petroleum Authority
Act, 2005 (Act 691)
Securities Industry Act,
2016(Act 929)
University of Ghana Act 2010
(Act 806)
National Pensions Act, 2008 (Act
766),
CASES REFERRED TO IN JUDGMENT
Adjei-Twum v. Attorney General
and Akwetey [2005-2006] SCGLR
732;
Republic v. High Court (Fast
Track Division), Ex parte; CHRAJ
(Richard Anane, Interested
Party) [2007-2008] 213
Asare v. Attorney General
[2003-2004] 2 SCGLR 823
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
KOTEY, JSC:-
COUNSEL
SYLVESTER WILLIAMS, CHIEF STATE
ATTORNEY FOR DEFENDANT WITH HIM
AURIEL ASARE BOATENG, ASSISTANT
STATE ATTORNEY, AKAWARI ATINDEM,
ASSISTANT STATE ATTORNEY AND
VIVIAN OPOKU AGYAKWA, SENIOR
STATE ATTORNEY FOR THE
DEFENDANT.
GODWIN TAMEKLO FOR THE
PLAINTIFF.
KOTEY, JSC:-
1.0 Introduction
By a writ of summons issued on 4th
January 2017, the Plaintiff
invoked the original
jurisdiction of this court
pursuant to Articles 2 (1) and
130 seeking certain reliefs. The
said writ was amended pursuant
to leave of this court granted
on the 8th March
2017. The Plaintiff therefore
filed an amended writ and
statement of case on 10th
March 2017. The Defendant filed
an amended Statement of case on
23rd March 2019. The
following reliefs are indorsed
on the amended writ.
1.
A declaration that the removal
from office of such Chief
Executives, Chief Executive
Officers, Director-Generals
(howsoever called) and members
of governing boards of public
corporations merely on account
of the assumption of office of
the person elected as President
of the Republic of Ghana does
not amount to a just cause and
is accordingly unconstitutional;
2.
A declaration that to the extent
that section 14 of the
Presidential (Transition) Act
2012 (Act 845) requires all
Chief Executives, Chief
Executive Officers,
Director-Generals (howsoever
called) and members of governing
boards of public corporations to
cease to hold office merely on
account of the assumption of
office of the person elected as
President of the Republic of
Ghana, the said section 14 is
unconstitutional as being
inconsistent with the letter and
spirit of the Constitution,
particularly Articles
70(1)(d)(iii), 190 and/or 191(b)
of the Constitution;
3.
An order of perpetual injunction
restraining any person or
authority from removing from
office such Chief Executives,
Chief Executive Officers,
Director-Generals (howsoever
called) and members of governing
boards of public corporations
merely on account of the
assumption of office of the
person elected as President of
the Republic of Ghana.
1.1 Memorandum of Agreed Issues
The parties filed the following
joint memorandum of agreed
issues on the 9th May
2017.
1.
Whether and to what extent the
public services of Ghana as
defined under Article 190 of the
1992 Constitution are separate
from and/or independent of the
executive authority of Ghana.
2.
Whether or not the expression “a
member of the public services”
as used in Article 191 of the
1992 Constitution affects
members of the governing boards
of public corporations appointed
pursuant to Articles
70(1)(d)(iii), 190(1)(b) and
190(3) of the 1992 Constitution.
3.
Whether or not the President of
the Republic of Ghana in line
with Article 297(a) of the 1992
Constitution has the legal
authority to remove from office
members of the governing boards
of public corporations appointed
pursuant to Articles
70(1)(d)(iii), 190(1)(b) and
190(3) of the 1992 Constitution
without assigning any just
cause.
4.
Whether or not a turnover in
power (that is, the assumption
of office of the person elected
as President of the Republic of
Ghana) constitutes a just cause
for the removal from office of
members of the governing boards
of public corporations appointed
pursuant to Articles
70(1)(d)(iii), 190(1)(b) and
190(3) of the Constitution.
5.
Whether or not section 14 of the
Presidential (Transition) Act
2012 (Act 845) is inconsistent
with articles 70(1)(d)(iii), 190
and/or 191(b) of the
Constitution, 1992; and
6.
Whether or not article 191(b) of
the Constitution, 1992, also
applies to the category of
officers mentioned in section 14
of Act 845.
1.2 Issues for Trial
When the instant matter came up
for hearing on 19th February
2019, this Court ordered the
parties to file legal arguments
on issues 3, 5, and 6 of the
joint memorandums of issues on
or before 12th March 2019.
The three issues set down for
trial are:
1.
Whether or not the President of
the Republic of Ghana in line
with Article 297(a) of the 1992
Constitution has the legal
authority to remove from office
members of the governing boards
of public corporations appointed
pursuant to Articles
70(1)(d)(iii), 190(1)(b) and
190(3) of the 1992 Constitution
without assigning any just
cause.
2.
Whether or not section 14 of the
Presidential (Transition) Act
2012 (Act 845) is inconsistent
with articles 70(1)(d)(iii), 190
and/or 191(b) of the
Constitution, 1992; and
3.
Whether or not article 19(b) of
the Constitution, 1992, also
applies to the category of
officers mentioned in section 14
of Act 845.
2.0 Removal of Members of Boards
of Public Corporations Without
Just Cause
The first issue set down for
trial is;
“Whether or not the
President of the Republic of
Ghana in line with Article
297(a) of the 1992
Constitution has the legal
authority to remove from office
members of the governing boards
of public corporations appointed
pursuant to Articles
70(1)(d)(iii), 190(1)(b) and
190(3) of the 1992 Constitution
without assigning any just
cause.”
The relevant provisions of the
Constitution in relation to this
issue are articles 297(a),
70(1)(d)(iii), 190(1)(b) and
190(3). They provide as follows.
Article 297(a)
“In this Constitution and in any
other law - (a) the power to
appoint a person to hold or to
act in an office in the public
service shall include the power
to confirm appointments, to
exercise disciplinary control
over persons holding or acting
in any such office and to remove
the persons from office”
Article 70(1)(d)(iii)
“70-1. The President shall,
acting in consultation with the
Council of State, appoint - (d)
the Chairman and other members
of - (iii) the governing bodies
of public corporations.”
Article 190(1)(b)
“190. (1) The Public Services of
Ghana shall include - (b) Public
Corporations other than those
set up as commercial ventures…”
Article 190(3)
“Subject to the provisions of
this Constitution, an act of
Parliament enacted by 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.”
The main point of contention
between the Plaintiff and the
Defendant is whether the express
requirement for a “just cause”
contained in article 191(b) of
the Constitution as a basis for
the removal of members of the
public services of Ghana applies
to both public officers
appointed under Article 195 and
those appointed under article 70
of the Constitution.
2.1 Members of the Governing
Boards of Public Corporations
The Plaintiff argues that it is
obvious from the provisions of
the Constitution, 1992, that
there are different categories
of public officers, ranging from
pubic officers who serve in the
public services of Ghana, public
officers who are agents of the
President and serve at his will
and pleasure, public officers
who occupy elective positions,
to public officers who perform
judicial functions. Moreover,
the Plaintiff argues that
article 297(a) of the
Constitution only applies within
the context of a public officer
who can be removed from office
by his appointing authority
where there is no requirement
for the assignment of reasons
for such removal.
Consequently, the Plaintiff
asserts that article 297(a) of
the Constitution cannot be
invoked to remove a public
officer from office where the
Constitution or some other law
imposes a just cause requirement
for the removal of such public
officer. In sum, the Plaintiff
argues that article 297(a) of
the Constitution is wholly and
totally irrelevant to the
question whether the heads and
members of the governing boards
of public corporations set up
under article 190 of the
Constitution are members of the
public services of Ghana, and
therefore cannot be “removed
from office without just cause.”
The Defendant contends that
article 295 defines a public
corporation as: “a corporation
or any other body of persons
established by an Act of
Parliament or set up out of
funds provided by Parliament or
other public funds.” Unlike the
definition provided in Article
190(4), this definition does
include public corporations
established for commercial
purposes. This definition is
broad and encompasses all types
of public corporations including
those set up for commercial
ventures. The definition in
Article 190(4) is more specific
to article 190 and relates to
the public service.
Additionally, the President
having the power to appoint
chairmen and other members of
such public corporations would
have the power of removal of
such officers in appropriate
cases. It must be noted that the
President’s authority for
appointment/removal from office
of public officers does not
extend to the entire staffing
population of the public service
but only to the chairmen and the
governing members as indicated
in article 70(1)(d)(iii) of the
Constitution.
It is the Defendant’s contention
that the President has the power
to remove public officers from
office if the same is warranted
by law, this is either by
constitutional provisions or by
provisions in an Act of
Parliament establishing the
public corporation.
After a thorough review and
consideration of this issue and
the relevant constitutional
provisions we hold that members
of the governing bodies of
statutory boards, corporations,
authorities (howsoever
described) are not members of
the public services, and not
public officers by virtue of
their membership of the
governing body of a statutory
board or corporation. They are
therefore not governed by
article 191(b) of the
Constitution.
Members of governing bodies are
appointed by the President in
consultation with the Council of
State. Such members of governing
bodies, appointed pursuant to
article 70 are not members of
the service in respect of which
they serve on the governing
body. So, for example a person
who serves on the Council of the
University of Ghana as a
representative of the alumni
association, or Conference of
Heads of Assisted Secondary
Schools (CHASS) or by
appointment of the President
does not become a public officer
or a member of the public
service by virtue of his or her
membership of the governing
council. But the issues raised
are much more complex and
therefore our conclusions much
more nuanced than the above
Public corporations, authorities
(howsoever) described that fall
under article 190 of the
Constitution have staff and
officials employed by the
corporation or authority.
2.2 Staff of Public Corporations
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).
3.0 The Constitutionality or
Otherwise of Paragraph 6 of the
Schedule to section 14(1) of Act
845
The second issue set down for
trial is;
“Whether or not
section 14 of the Presidential
(Transition) Act, 2012 (Act 845)
is inconsistent with
articles 70(1)(d)(iii), 190
and/or 191(b) of the
Constitution, 1992.”
3.1 Relevant Constitutional and
Statutory Provisions
The relevant provisions of the
Constitution in relation to this
issue are articles
70(1)(d)(iii), 190 and 191(b).
They provide as follows.
Article 70(1)(d)(iii)
“The President shall, acting in
consultation with the Council of
State, appoint - (d) the
Chairman and other members of -
(iii) the governing bodies of
public corporations.”
Article 190
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 191(1)(b)
A member of the public services
shall not be – (b) dismissed or
removed from office or reduced
in rank or otherwise punished
without just cause.
Section 14 of Act 845 provides
as follows.
1. On the assumption of office
of the person elected as
President, a person holding any
of the offices specified in the
Schedule shall cease to hold
that office, and shall be paid
the relevant retirement benefits
and enjoyment of facilities as
provided by law.
2. The functions of office of a
person who ceases to hold office
under subsection (1) shall be
performed by a person so
appointed by the President for
the period specified in writing
by the President.
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.
The schedule to section 14
provides that;
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.
3.2 Intepretation of the
Provisions
The Plaintiff submitted that the
categories of persons specified
in paragraph 6 of the schedule
qualify as members of the public
services of Ghana pursuant to
article 190(b), and as such,
cannot be removed from office
without just cause. He contends
‘Just cause’ is not satisfied by
a change of President.
Furthermore, the Plaintiff
argued that heads and members of
governing boards of public
corporations possess
constitutional and legal
protection, which includes
tenure, and cannot be removed
solely due to a transition in
government. The Plaintiff
asserted that public
corporations enjoy operational
autonomy and independence, and
do not operate at the whim of
the President.
The Defendant on the other hand,
submitted that section 14 of Act
845 satisfies the “just cause”
requirement of articles
190(1)(b) and 191(b), and is
consistent with the
Constitution. The Defendant
contended that the purpose of
Act 845 is to provide for a
smooth transition of power from
one democratically elected
government to another and that
to allow Article 191(b) of the
Constitution to thwart section
14 of Act 845, would create
confusion and defeat the purpose
of the Act. The Defendant
further urged the Court to
employ a purposive approach in
interpreting Article
70(1)(d)(iii), 190 and/or 191(b)
and section 14 of Act 845 to
achieve the objective of Act
845.
After a careful consideration of
the relevant constitutional
provisions we are firmly of the
view that section 14 of Act 845
is prima facie not
unconstitutional. The
constitutional and legislative
provisions need to be analysed
and teased out very carefully in
order to delineate the full
scope and application of section
14.
The key provision is Paragraph 6
of the of the schedule to
section 14. Section 14 provides
that on the assumption of office
of the person elected as
President, a person holding any
of the offices specified in the
scheduled shall cease to hold
that office. Paragraph 6 of the
category of persons specified in
the schedule are “Persons
appointed by the President or
the Minister of state as members
of Statutory Boards and
Corporations.”
The key question is; what
category of persons is affected
by paragraph 6. A purposive
interpretation must be adopted
in intepreting section 14 and
the relevant constitutional
provisions?
The interpretation Act 2009 (Act
792) enjoins us to adopt a
purposive approach in the
interpretation of legislation.
This Court has also held in a
long line of cases that a
purposive approach must be taken
in the interpretation of the
Constitution. Reference is made
Adjei-Twum v. Attorney
General and Akwetey
[2005-2006] SCGLR 732;
Republic v. High Court
(Fast Track Division), Ex parte;
CHRAJ (Richard Anane,
Interested Party) [2007-2008]
213 and Asare v.
Attorney General [2003-2004]
2 SCGLR 823. In Asare v.
Attorney General, (supra)
Date- Bah JSC encapsulated this
approach in the following words:
“What interpretation
is to be given to the words
should depend upon the
court’s perception of the
purpose of the provision and the
context of the words, rather
than on their dictionary
meaning.”
Kludze J.SC expressed it thus;
“I agree that we
must adopt a purposive
construction of the
constitutional
provisions. That means that we
do not construe words in the
abstract but within
the context in which they were
used…. the fundamental rule is
for the court to construe
every enactment with the purpose
of effectuating the true
intent of the framers of the
1992 Constitution.”
What then is the purpose of Act
845? The objective of Act 845 is
captured in the preamble to the
Act. It is; “An Act to establish
arrangements for the political
transfer of administration from
one democratically elected
President, to another
democratically elected
President, to provide for the
regulation of political transfer
of power and for related
matters.”
3.3 Scope and Effect of Section
14 of Act 845
Having established the purpose
of Act 845 we now proceed to
interpret section 14 in order to
determine its true scope and
effect.
Section 14(1) of Act 845
provides that on the election
and assumption of office of a
new President, persons including
those appointed by the former
President or a former Minister
of State as members of statutory
boards and corporations shall
cease to hold office.
We will begin our examination of
the scope and effect of section
14 by purposively interpreting
the phrase “Persons appointed by
the President or Minister of
State”.
Article 70(1) of the
Constitution provides that;
The President shall, acting in
consultation with the Council of
State, appoint
(d) the Chairman and other
members of
(i) the Public Services
Commission
(iii) the governing bodies of
public corporations
Article 195 (1) of the
Constitution on the other hand,
provides that;
“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 advice of the
governing Council of the Service
concerned given in consultation
with the Public Services
Commission.”
Members of governing bodies of
public corporations are
appointed by the President,
acting in Consultation with the
Council of State pursuant to
article 70 (1) (d) (iii) and the
constitutive Act of a particular
corporation. The permanent staff
of public corporations, on the
other hand, are public officers
appointed by the President,
acting in accordance with the
advice of the governing board of
the corporation concerned given
in consultation with the Public
Services Commission, pursuant to
article 195(1) and the
constitutive Act of the public
corporation concerned.
Our first conclusion is
therefore that paragraph 6 of
the schedule to section 14 of
Act 845 only applies to members
of the governing bodies of
statutory boards and
corporations appointed by the
President or a Minister of State
and not to the permanent Staff
of these public corporations who
are public officers and not
affected by Act 845. This is
reiterated by section 14(3) of
Act 845 which excludes public
officers from the operation of
the section.
The Composition, appointment,
tenure and removal of the
members of the governing bodies
of Statutory Boards and
Corporations is determined by
the constitutive Acts of
particular institutions and no
generalization can be made. The
provisions of a random selection
of constitutive Acts will be
examined to buttress this
conclusion.
3.3.1 Appointment of Members of
Governing Bodies
Section 11 of the University of
Ghana Act provides that;
11.“The governing body of the
University is a Council
consisting of
(a) the Chancellor;
(b) a chairperson;
(c) the Vice-Chancellor;
(d) four persons appointed by
the President taking into
account
(i) the need for
gender balance,
(ii) expertise in
finance,
(iii) expertise in
management;
(e) one representative of the
alumni of the University;
(f) two representatives of
Convocation, one of whom is from
the non-teaching staff;
(g) one representative of the
National Council for Tertiary
Education nominated by the
Council for Tertiary Education;
(h) a Vice-Chancellor of an
African University appointed by
Council;
(i) an elected representative of
the heads of second cycle
institutions in Ghana;
(j) four other persons appointed
by Council for outside the
University two of whom are
women;
(k) one representative of the
University Teachers Association;
(l) one representative of
undergraduate students of the
University elected by the
Students Representative Council;
(m) one representative of
post-graduate students of the
University branch of the
Graduate Students Association;
and
(n) one representative of the
Teachers and Education Workers
Union.”
It is quite clear that apart
from the Chairperson and four
other persons appointed by the
President, members of the
University Council are not
appointed by the President.
On the other hand, section 3 of
the National Petroleum Authority
Act, 2005 (Act 691) provides
that;
3.(1) “The governing body of the
Authority is a Board consisting
of
(a) the chairperson,
(b) the Chief Executive
(c) one representative of
the consuming public other than
a person specified in paragraphs
(d)and (e),
(d) one representative of
the petroleum workers union,
(e) one representative of
(i) the Ghana National Chamber
of Commerce, or
(ii) the Ghana Chamber of Mines,
and
(f) three persons, at
least one of whom is a woman and
each of whom has specialised
knowledge and experience in
matters relevant to the
functions of the Authority.
(2) The members of the Board
shall be appointed by the
President in accordance with
article 70 of theConstitution.”
The members of the governing
board of the National Petroleum
Authority are therefore
appointed by the President in
consultation with the Council of
State.
Section 4 of the Forestry
Commission Act, 1999 (Act 571)
also provides for the
appointment of members of the
board by the President acting in
consultation with the Council of
State;
4.(1) The governing body of the
Commission is a Board consisting
of
(a) the chairman,
(b) the Chief Executive
of the Commission,
(c) one representative of
the National House of Chiefs,
(d) one representative of
the timber trade and industry,
(e) one representative of
the wildlife trade and industry,
(f) one representative of
the Ghana Institute of
Professional Foresters,
(g) one representative of
non-governmental organisations
involved in forest and
wildlifemanagement,
(h) one representative of
the Lands Commission, and
(i) three other persons
with financial, commercial or
managerial experience nominated
by theMinister, at least one of
whom is woman.
(2) The members of the Board
shall be appointed by the
President in accordance with
article 70 of theConstitution.
Section 4(1) and (2) of the
Securities Industry Act,
2016(Act 929) provides for the
governing board of the
Securities and Exchange
Commission as follows;
4.(1) The governing body of the
Commission is a Board consisting
of
(a) a chairperson;
(b) the Director-General;
(c) the two Deputy Directors-
General;
(d) one representative each from
the following:
(i) Bank of Ghana
not below the rank of a
Director;
and
(ii) Ministry of
Finance not below the rank of a
Director;
(e) the Registrar-General or the
representation of the
Registrar-General; and
(f) four other persons
comprising
(i) a lawyer qualified to be
appointed a Justice of the
Superior Court of Judicature
nominated by the General Legal
Council;
(ii) a chartered accountant
nominated by the Institute of
Chartered Accountants, Ghana;
(iii) an academic researcher in
a relevant field; and
(iv) a woman
(2) The members of the Board
shall be appointed by the
President in accordance with
article 70 of the Constitution.
Section 8(1) and (2) of the
National Pensions Act, 2008 (Act
776) provides for the
appointment of members of the
Governing board as follows;
8.(1) The governing body of the
Authority is a Board consisting
of
(a) a chairperson,
(b) the Chief Executive of the
Authority,
(c) one person nominated by the
President,
(d) a representative of the
Ministry responsible for
pensions, not below the rank of
a director,
(e) a representative of Bank of
Ghana,
(f) a representative of the
Securities and Exchange
Commission,
(g) two representatives of
OrganisedLabour,
(h) one representative of the
Ghana Employers’ Association,
(i) one representative of the
National Pensioners Association,
and
(j) a representative of the
Attorney-General and Minister
for Justice not below the rank
of a Principal State Attorney.
(2) The chairperson and the
other members of the Board shall
be appointed by the President in
accordance with article 70 of
the Constitution.
3.3.2 Tenure of Members of
Governing Bodies
Section 13 of the University of
Ghana Act 2010 (Act 806)
provides that;
13. (1) A member of the
University other than the
Vice-Chancellor who is a member
of the Council shall hold office
for a period of two years and
eligible for re-appointment for
a second term.
(2) A member of the
Council who is not a member of
the University shall hold
office for a period of three
years and is eligible for
re-appointment for a second
term.
(3) A member of the
Council is not entitled to
remuneration for membership of
the Council but the member is
entitled to allowances that the
Council may determine.
Section 5 (1) of the
Forestry Commission Act 1999
(Act 571) provides that;
5(1). A member of the Board,
other than the chief executive
and the representative of the
Lands Commission, shall hold
office for a period not
exceeding four years and is
eligible for re-appointment.
Section 5 (1) of the National
Petroleum Authority Act,
2005(Act 691) provides that;
5(1). A member of the Board
other than the Chief Executive
shall hold office for a period
not exceeding four years and is
eligible for re-appointment but
a member shall not be appointed
for more than two terms in
succession.
3.3.3 Removal of Members of
Governing Bodies
The University of Ghana Act does
not expressly provide for the
removal of a member of Council.
Section 14 of the Act specifies
a member of circumstances in
which the office of a member of
Council shall become vacant.
Section 5(4) of the Forestry
Commission Act 1999 (Act 571),
on the other hand expressly
provides that;
5.(4) The chairman or any other
member of the Board may be
removed from office by the
President for inability to
perform the functions of office
or for a stated misbehaviour or
for any other just cause.
Section 5(5) of the National
Petroleum Authority Act, 2005
(Act 691) provides that;
5.(5) The President may by
letter addressed to a member
revoke the appointment of that
member for just cause and in
consultation with the nominating
body.
The just cause requirement for
the removal of members of the
governing bodies of statutory
boards and corporations is not
provided for by some
constitutive Acts of statutory
boards and corporations. For
example, section 9 of the
National Pensions Act, 2008 (Act
766), which establishes the
National Pensions Regulatory
Authority, provides that;
9.
(1) A member of the Board shall
hold office for a period not
exceeding three years and is
eligible for re-appointment but
a member shall not be appointed
for more than two terms.
(2) Subsection (1)
does not apply to the Chief
Executive.
(3) A member of the
Board may at any time resign
from office in writing
addressed to the
President through the Minister.
(4) A member of the
Board, who is absent from three
consecutive meetings of
the Board without
reasonable excuse ceases to be a
member of the Board.
(5) The President
may by letter addressed to a
member revoke the appointment
of that member.
Similarly, section 9 of the
Securities Industry Act, 2016
(Act 929), which establishes the
securities and Exchange
Commission does not require just
cause for the removal of a
member of the Board of the
Commission. Section of Act 929
provides that;
9. Members of the Board and
members of the committee of the
Board shall be paid allowances
approved by the Minister.
3.4 Effect of Section 14 on
Members of Governing Bodies of
Statutory Boards and
Corporations
What then is the effect of
section 14 of Act 845 on the
tenure of members of the
governing bodies of statutory
boards and corporations of
persons appointed by the
President or a Minister of
State? The intendment of Section
14 is clear. It is to ensure
that a new President is not
saddled with non-career office
holders appointed by a previous
President. And yet section 14
conflicts with the tenure
provisions of the constitutive
Acts of many statutory boards
and corporations. Act 845 is
later in point of time than many
of the constitutive Acts. Act
845 is also specific, in that it
applies only to Presidential
transitions. The respective
constitutive Acts are also
specific in the sense that they
apply to particular Statutory
Boards and Corporations. On
balance, and applying a
purposive approach to the
interpretation to the
Constitution and all the
relevant legislation, we hold
that the effect of Section 14 of
Act 845 is to automatically
remove from office all persons
appointed by a previous
President or Minister of State
as a representative of the
President or Minister on the
assumption of office of a new
President, irrespective of the
tenure provisions of the Act
establishing the Statutory Board
or Corporation. However, section
14 of Act 845 does not affect
representatives of constituent
bodies and interests on the
governing body who can only be
removed by the body or interest
that they represent, and in
accordance with the tenure and
removal provisions of the Act
establishing the statutory board
or corporation.
3.5 Chief Executives of
Statutory Boards and
Corporations
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.
Article 195 (3) of the
Constitution provides that; “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”.
In accordance with article
195(3), the University of Ghana
Act, 2010 (Act 806), for
example, provides in section 9
as follows:
9. (1) The
University Council shall appoint
the Vice-Chancellor who is
answerable to the
Council and is the academic and
administrative head
and chief
disciplinary officer of the
University.
(2) The
Vice-Chancellor shall hold
office on terms and conditions
specified in the letter of
appointment.
(3) The
Vice-Chancellor shall hold
office for a period of up to
four years and
is eligible for re-appointment
for another term only.
Vice Chancellors and heads of
institutions of higher education
are appointed by their councils
and not the President or
Minister of State. They are also
public officers under article
190 and therefore not within the
ambit of section 14 of Act 845.
Other executive heads are
provided by article 195(1) and
the relevant provisions of the
constitutive Acts of particular
statutory boards or
corporations. Article 195(1)
provides that public officers
shall be appointed by the
President in accordance with the
advice of governing council of
the service concerned given in
consultation with the Public
Services Commission.
Section 48(1) to (3) of the
National Petroleum Authority
Act, 2005 (Act 691) provides for
the appointment, tenure and
conditions of service of the
Chief Executive as follows;
48.
(1) The President shall in
accordance with article 195 of
the
Constitution,
appoint the Chief Executive for
the Authority.
(2) The
Chief Executive shall hold
office on the terms and
conditions
specified in the letter of
appointment.
(3) The
Chief Executive shall be a
member of the Board
Section 12 of the Forestry
Commission Act, 1999 (Act 571)
provides for the appointment and
tenure of the chief Executive as
follows:
12.
(1) There shall be a chief
executive of the Commission who
shall be the
executive and administrative
head of the Commission.
(2) The
chief executive shall be
appointed by the President in
accordance with
article 195 of the Constitution
and shall hold office for
the period and
on the other terms and
conditions specified in the
letter of appointment.
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 as follows;
16.
(1) The President shall, in
accordance with article 195 of
the
Constitution,
appoint a person with expertise
in pensions, actuarial
science, insurance
or related field as the Chief
Executive Officer of the
Authority.
(2) The
Chief Executive Officer shall
hold office on the terms and
conditions specified in the
letter of appointment.
And lastly, section 11 (1) and
(2) of the Securities Industry
Act, 2016 (Act 929) provides for
the appointment and tenure of
the Director-General of the
Securities and Exchange
Commission as follows;
11. (1) The
President shall in accordance
with article 195 of the
Constitution appoint
a Director-General of the
Commission who shall be the
chief executive of the
Commission.
(2) The
Director-General is shall hold
office on the terms and
conditions
specified in the letter of
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.
3.6 Act 845 and the Dissolution
of Boards
A purposive interpretation of
section 14 of Act 845 leads us
to the conclusion that the
provision must be interpreted
restrictively. Thus interpreted,
we hold that the section does
not have the effect of
dissolving all governing bodies
of Statutory Boards and
Corporations on the election and
assumption of office of a new
President. In fact, there is no
reference to governing bodies in
section 14. The section refers
to “a person holding any of the
offices specified in the
schedule shall cease to hold
that office.” The Schedule then
lists the persons holding
specified offices. By no stretch
of the imagination can this be
interpreted to mean the
automatic dissolution of
governing bodies. If Section 14
intended to automatically
dissolve the governing bodies of
Statutory Boards and
Corporations, it would have said
so. All that section 14 does is
that certain specified persons
shall cease to hold office. The
precise effect on the viability
of a governing body following
the ceasure of persons appointed
by a President or Minister of
State to hold office will depend
on the composition of the
governing body and the
provisions of the constitutive
Act of the Statutory Board of
Corporation.
3.7 State Companies
The Republic of Ghana is the
sole, majority or significant
shareholder in a number of
companies. These include Ghana
Airports Company Ltd, GCB Bank
Ltd, Goil Ltd, State Housing
Company Ltd and National
Investment Bank Ltd. These are
not Statutory Boards or
Corporations. They are limited
liability companies incorporated
under the Companies Act, 1963
(Act 179). Some are listed on
the Ghana Stock Exchange. Upon
purposive interpretation of
section 14 of Act 845, we hold
that members of the governing
boards of these companies and
chief executives are not
affected by section 14 of Act
845. Members of the boards and
Chief executives of such
companies shall only be removed
in accordance with the articles
of incorporation of the company
and the Companies Act, 1963 (Act
179).
3.8 Section 14 and
Constitutional Governing Bodies
The Constitution establishes a
number of governing bodies for
public services. These include
the Judicial Council, the Police
Council and the Public Services
Commission. These governing
bodies are established by the
Constitution, not legislation
and the public services they
govern are not Statutory Boards
and Corporations. A purposive
interpretation of the section 14
of Act 845 therefore leads us to
the inexorable conclusion that
the section does not apply to
such constitutional governing
bodies and such governing bodies
are not automatically dissolved
upon the assumption of office of
a new President. We are not
unmindful of the fact that some
of the members of such
constitutional governing bodies
would have been appointed by a
previous President and that the
purpose and intendment of Act
845 is not to saddle a new
President with the appointees of
a previous President. We are,
however of the considered view
that the dissolution of such
constitutional governing bodies
is not required for the purpose
and intendment of Act 845 to be
realized. A new President must
make his appointments unto such
bodies as soon as possible upon
his assumption of office. It is
important that the work and
functioning of these bodies are
not unduly paralysed following
the assumption of the office of
the new President. The situation
where such bodies are
incapacitated, sometimes for
upwards of six months, following
the assumption of office of a
new President is not mandated by
the Constitution and Act 845,
and should not continue.
4.0 Are Members of the Governing
Bodies of Statutory Boards and
Corporations Covered by the
“Just Cause” Requirements of
Article 191(1)(b) ?
The third issue set down for
trial is whether or not article
191(b) of the Constitution,
1992, also applies to the
category of officers mentioned
in section 14 of Act 845.
Article 191(b) of the
Constitution provides that a
member of the public services
shall not be “dismissed or
removed from office or reduced
in rank or otherwise punished
without just cause”. A member of
the public services shall not be
– (b) dismissed or removed from
office or reduced in rank or
otherwise punished without just
cause.
The Plaintiff maintained that
article 191(b) applies to
members of the public service of
Ghana only. He contended that
this includes the heads and
members of the governing boards
of public corporations as well
as the “permanent staff” of the
public services of Ghana. He
further argued that the
categories of persons specified
in paragraphs 1, 2, 3, 4 and 5
of the schedule to section 14
serve at the pleasure of the
President, and can therefore be
removed from office at any time
for any reason or no reason at
all. But he submitted that those
specified in paragraph 6 are
members of the public service
and cannot be removed on the
assumption of office of a new
President as this would violate
article 191(b) of the
Constitution.
The Defendant on the other hand
asserted that a purposive
approach reveals that the
objective of Act 845 is to allow
the new President to select the
people who believe in his
policies and programs, as
opposed to those who may
frustrate his intentions. He
therefore maintained that the
“just cause” requirement of
Article 191(b) is satisfied by
Act 845.
We have carefully examined the
submissions of the parties and
analysed the relevant
constitutional and statutory
provisions and it is our
considered opinion that the
contention of the plaintiff is
misconceived. The category of
officers mentioned in section 14
of Act 845, with the exception
of public officers appointed in
accordance with article 195(1),
are not members of the public
service and therefore not
governed by article 191(b).
5.0 Conclusion
From the foregoing we conclude
as follows:
1.
Members of governing boards of
statutory boards and
corporations appointed in
accordance with article 70(1)(d)(iii)
of the Constitution are
not
members of the Public Service
and their tenure
is
not governed by articles
191 and 195
of the Constitution.
Therefore, each person may be
removed at will by the
President. We declare
accordingly.
2.
Upon a true and proper
interpretation, a Public Service
Officer
appointed in accordance with
article 195 of the Constitution
and
may not be removed save
in accordance with
the terms and conditions of his
or her contract of engagement or
in the absence of
such,
for
‘just
cause’
pursuant to
articles
191 and 195 of the Constitution.
3.
To the extent that section 14 of
the Presidential (Transition)
Act 2012,
(Act
845)
requires Chief Executives or
Directors-General
(howsoever described)
of
public
boards
or corporations to cease to hold
office upon the assumption of
office by a person elected as
President of the Republic of
Ghana, the same is hereby
declared to be unconstitutional
and void for being in
contravention of articles 190
and 191 of the Constitution.
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
AKUFFO (MS), CJ:-
I agree with the conclusion and
reasoning of my brother Kotey,
JSC.
S. A. B. AKUFFO (MS)
(CHIEF JUSTICE)
DOTSE, JSC:-
I agree with the conclusion and
reasoning of my brother Kotey,
JSC.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
GBADEGBE, JSC:-
I agree with the conclusion and
reasoning of my brother Kotey,
JSC.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
BENIN, JSC:-
I agree with the conclusion and
reasoning of my brother Kotey,
JSC.
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
MARFUL-SAU, JSC:-
I agree with the conclusion and
reasoning of my brother Kotey,
JSC.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
AMEGATCHER, JSC:-
I agree with the conclusion and
reasoning of my brother Kotey,
JSC.
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
COUNSEL
SYLVESTER WILLIAMS, CHIEF STATE
ATTORNEY FOR DEFENDANT WITH HIM
AURIEL ASARE BOATENG, ASSISTANT
STATE ATTORNEY, AKAWARI ATINDEM,
ASSISTANT STATE ATTORNEY AND
VIVIAN OPOKU AGYAKWA, SENIOR
STATE ATTORNEY FOR THE
DEFENDANT.
GODWIN TAMEKLO FOR THE
PLAINTIFF.
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