An action was brought to invoke the original jurisdiction of the supreme court pursuant to articles 2(1)
(b) and 60 of the 1992 consttitution
FACTS
On 21 February 2002, the President of the Republic wrote to the Speaker of Parliament,
informing the Speaker that the President would be travelling to Australia to attend the
Commonwealth Heads of Government Meeting, scheduled to take place from 2 to 5
March 2002 and that he would be away from Ghana from 24 February until 10 March.
He further informed the Speaker that during that period, because the Vice-President
would also be absent from the country from the 24 to 27 February, the Speaker was,
pursuant to article 60(11) of the Constitution, to act as President for those four days.
Accordingly, on 24 February, the Speaker swore the Presidential oath and acted for the
President from the 24 to 27 February.
PROCEDURE:
The plaintiff filed a writ at the Supreme Court invoking the original jurisdiction nof the court and
seeking :
“(1) A declaration that upon a true and proper interpretation of article 60(11) of the 1992
Constitution, the purported swearing-in of the Speaker of Parliament, the
Right Honourable Mr Peter Ala Adjetey, as President of Ghana, on or
about Monday 24 February 2002, is inconsistent with, or is in contravention of the said
provision of the Constitution and is therefore unconstitutional, void and of no effect.
(2) A perpetual injunction to restrain the Speaker of Parliament, the Right Honourable
Peter Ala Adjetey, and any other person succeeding to the Office of Speaker of
Parliament, from performing the functions of President of the Republic of Ghana except
in the event of the President and the Vice-President being unable to perform the
functions of the President.
(3) Such other ancillary or consequential orders or directives as the court may deem fit to
give.”
Date-Baah:
In interpreting the relevena text , we need to remind oursleveds that contecxtual analysis is crucial to
the interpretation of legal instruments. An important part of this contextual analysis is the
determination of he purpose of the provision under construction.
It would seem that the drafters of the constitution of hgana since 1969 have taken the view that the
absence of a president from Ghana renders him unable to perform the functions of his office.
Accordingly, the vice- president , or in his absence , eh speaker is to exercise his functions whilst he is
thus disabled. The plaintiff challengsed would seem to be the wisdom of he position.
The plaintiff, in effect, argues that the doctrine of separation of powers is a core concept in the
current constitutional arrangement in Ghana and therefore in determining the objective purpose
of article 60(11) this fact should be taken into account and care taken not to undermine the
doctrine
In theory, there is much persuasive force in the plaintiff’s contention that merely because the
President is away from Ghana does not necessarily mean that he is unable to perform the
functions of his office, particularly, in the light of modern technological developments in the area
of telecommunications and also because of his authority to delegate power to appropriate
subordinates. In practice, however, this argument, raises the empirical question whether, given
the circumstances of contemporary Ghana and the means of secure communication available to
the President when abroad, it is realistic to expect the President to exercise his executive
authority from abroad.
is the ultimate origin of the current article 60(11) of the 1992 Constitution, carries with it the
implication, to my mind, that given the means of communication available to a Ghanaian
President when travelling abroad, it is impractical to expect the President to remain fully in
charge of the executive branch of government. The issue arising therefore is whether this
judgment of the framers of the recent constitutions of Ghana remains valid. No evidence was
made available to this court to rebut this judgment of the framers.
Some thorny issues arise from holding that the Speaker may carry out the functions of the
President whilst he is abroad. If the Speaker is exercising the functions of the President
pursuant to article 60(11), does this imply that the President no longer has executive authority
whilst travelling abroad? Can he not execute agreements and other documents on behalf of the
Republic? Would he need authorisation from the Speaker to act on behalf of the Republic? If
the answer to these questions were that the President no longer had authority to act on behalf
of the Republic, would this not fly in the face of the expectation of ordinary Ghanaians? If, on
the other hand, the President whilst abroad retains the authority to carry out at least some of his
functions, how are the respective roles of the President and the Acting President to
be co-ordinated and reconciled? These are all questions which were raised by
the express provision in the 1969 Constitution which has been referred to above (article 38) and
yet it provided no answers to them. Given the absence of express provision in article 60(11),
should it be so construed as to obviate the need to address these questions, in spite of the
previous constitutional history on the matter?
The period during which the speaker will ordinarily be required to act for the president will be short. In
this present case, it was for only four days . accordingly, such short periods of the executive power being
exercised b the presiding officer of the legislature are unlikely to impair the long-term underlying
balance of the constitution. Moreover in spite of the headship of the executive and the legislature, as an
institution, will eah maintain tehier distinct and separate zones of authority . in this regard, titwould be
desireable for a convention or practice to be observed whereby when the speaker is performing the
functions of president, he does not at the same time exercise the powers of the speaker and he devolves
his presiding and other roles to a deputy.
What interpretation should be given to the wordsshould depend upoin the court’s perception of the
purpose of the provision and the context of the words rather than on their dictionary meaning. The plain
menaning approach to judiciail interpretation is not necessarily the most apposite.
Where the presidntn and the vice-presidnt are absent from Ghana, they ar to be regarded as “unable to
perform the functions of the president” and thus the speaker is obliged to perform htose functions. …
the purpose of the framers of the constitution was to ensure that whoever exercises the functions of
the President is physically present in Ghana. This has to do with the framers’ assessment of the
empirical conditions in Ghana and the efficacy with which executive power may be exercised in Ghana
from abroad.
Prof Kludze JSC
If we accede to this contention and agree with the plaintiff that the President is not unable to perform
the functions of his high office when absent from Ghana, it would be as unconstitutional for the Vice-
President also to perform those functions during the absence of the president as it would be for the
speaker of parliament to perform them.
One of the canons of construction is expressum facit cessare tacitum. It means that "when a
thing is expressly stated, it ends speculation as to whether something inconsistent may be
implied." It also means that express enactment shuts the door to further implication and
speculation
It is basically the intnent of the framers of the constitution that the functions of the president be
not thrown into abeyance while he is absent from Ghana for whatever erason. The executive
arm of government must continue to function even when the president has travelled outside
Ghana, even on official duties.
the Constitution offers its own meaning for the phrase "unable to perform the functions of
his office." In article 60(8) of the Constitution, the words are that:
"Whenever the President is absent from Ghana or is for any other reason unable to
perform the functions of his office, the Vice-President shall perform the functions of the
President until the President returns or is able to perform his functions." (The
emphasis is mine.)
It is obvious to me that the Constitution in so many words declares that the absence of the
President from Ghana is one of the possible circumstances in which he becomes "unable" to
discharge the functions of his high office. The words of the Constitution show that there may be
other reasons, apart from absence from Ghana, when the President may be unable to perform
his functions.
The words of the Constitution make it clear that "unable to perform the functions of his office" is
a genus of which "absent from Ghana" is one of the species or sub-sets.
The expression "absent from Ghana" is used in the same context and in the same article of
the Constitution. It must bear the same meaning as one of the reasons why the President may
be considered unable to perform the functions of his office, so as to mandate the devolution of
his functions under clauses (8) and (11) of article 60.
We may first deal with the criticism that there is a situation of a dual presidency where the
President is absent from Ghana, performing his official duties, but another person is inducted to
perform his functions in Ghana during his absence from Ghana.
This is an ingenious argument but without merit. In any case, even if I were to agree with the
plaintiff that it was unwise or desirable to swear in an acting President when the incumbent was
absent from Ghana, I would not substitute my wisdom for the wisdom of the people of Ghana
who voted to adopt the Constitution with those provisions contained therein
The pro visions in article 60(8) that : whenever the president …” it contemplates a temporary
assumption of the functions of the president .
In my view , the framers of the constitution at all times intend that regardless of het means of
national and international communication, there should be present in Ghana an official who has
duly sworn the Presidential Oath to perform the duties of Presdient if the need should arise
while the president is absent from Ghana or is incapacitated.
If Ghana were under attack by a foreing poer , communication with the president in a distant
country may not provide a prompt adequate or effective response. Advice to the absent
president may be impracticable and unreliable . we may need a real person who has
constituttiaonlly assumed the reings of office, albeit temporarily, to lead the nation as
Commander- in –Chief or oud Armed Forces until the return of the President.
It would imply tha tit would also be unconstitutional for the Chief Justice to perform the
functions of the Presidnet temporarily when all the other three are unable to perform tehm.
That basic assumption is that the executive power of the president should neve be in
abeyance. To have a situation when there is no person in hgana to exercise the executive
power of he president would be a prescription for chaos and anarchy, and could expose this
nation to both internal and external instability . if the doctrine of separation of powers must be
violated toensure that the office of the president is never to be unperformed and necve n
abeyance, I would readily violate it to spare the nation anrauchy and chaos. Nowhere in the
constitution are we enjoined to observe or apply such a doctrine. It is a goal that may be
attained if desireable . however if need arises , the doctrine must yield to pragmatism and
political reality .
The framers of the constitution did not want Ghana to be redderless in such an emergency ,
rare though it may be . therefore the constituton provides clearly for an order of precedence
which must be observed . it is not for nothing that such an elaboragte scheme was laid out I in
the constitution. It is to avoid a breach in the chain of command when an emergency does not
allow dor the cool deliberation to vest a locum tenens with the termporary executve power of the
president .
It must be noted that article 57(2) on the order of precedence occurs within chapter eight of the
1992 Constitution which is devoted to the executive branch. And it is not insignificant that the
said article 57(2) is under that portion of chapter eight which is sub-headed "The President." In
other words, the order of precedence is set out in the context of "executive" power, and
specifically within the exercise of executive power by "The President." If there were a rigid
separation of powers as now urged upon us, the Chief Justice would not be mentioned in the
context of the devolution of executive power or the order of precedence under chapter eight,
"The Executive" or the portion of the Constitution devoted to "The President."
If as he is entitled the plaintiff disagrees with the stipulation in the constitution n, he has avenues
open to him . he can appeal to the political process to initiatete the procedure to amend thepat
of the constituition that he disapproves.
The doctrine of the separation of powers is a philosophical and political dissertation which
seeks to compartmentalise the organs of government into three distinct branches denominated
as the executive, the legislative and the judicial branches. The doctrine proceeds to postulate
the theory that for efficient governance, and in particular to avoid despotism and tyranny, the
three branches of government must remain distinct; for, the concentration of power in the hands
of one person or one set of persons has the natural tendency to breed despotism and tyrannical
rule because of the fallibility of man.
The known apostle of the doctrine of separation of powers is Baron Charles de
Montesquieu. In about 1748 Montesquieu published his monumental L'Espirit de Lois. It has
since been regarded as the Bible for proponents of the doctrine of the separation of powers
in government. It is believed that that work greatly influenced the structure of the
Constitution of the United States, which is constructed on the doctrine of the separation of
powers with checks and balances. No wonder the plaintiff, who lives and works in the United
States, placed considerable reliance on Montesquieu's L'Espirit de Lois to buttress his
argument.
The work was not written in a vacuum. It was written especially as a comparative
analysis of the concentration of power and the structure of governments in Europe of the mid-
eighteenth century, as contrasted with the structure of the British Government. Specifically it
was contrasted with the structure in his native France where royal absolutism had reached its
apotheosis under the Bourbons, such that Louis XIV was able to proclaim that "L'etat cest moi."
Montesquieu was in the circumstances fascinated so much by the British attempts at the
separation of powers that he embraced and then embellished the concept of the separation of
powers of government. His book was, therefore, intended to validate and propagate the doctrine
as a desirable theory in constitutionalism. It was not necessarily an accurate observation of the
British constitutional structure by Montesquieu, even if the theory itself can otherwise be
validated.
Indeed, many serious scholars, including constitutional lawyers and political scientists, have
opined that Montesquieu's description and analysis of the British constitutional structure was
imperfect and imprecise. It has been stated by no less an authority than the celebrated
British constitutional lawyer, A V Dicey, that "Montesquieu misunderstood on this
point the principles and practice of the English Constitution." (See A V Dicey, The Law of the
Constitution, (8th ed), Macmillan & Co, London, 1915, page 220.) There are many flaws in the
admiration of the British Constitution by Montesquieu. For instance, he glossed over or else did
not appreciate that the House of Lords, being the Upper Chamber of the British bicameral
legislature, was also the highest appellate court, the court of last resort, in England. Scholars
today wonder how the doctrine of separation of powers was reconciled by Montesquieu with the
parliamentary executive in the Britis Constitution. In Britain, all the members of Cabinet,
embracing the effective executive branch of government, must also be members of the British
legislature. There is thus no substantial separation between the legislative and executive arms
of government. The amount of subsidiary legislation in England is so tremendous that it
has been said that the executive branch has usurped many of the legislative functions of
Parliament by legislative instruments, legal notices, etc which have the status of legislation.
Similarly, the volume of administrative decisions is overwhelming, and most of these are
essentially judicial and quasi-judicial except in name. To the extent that he did not consider
these matters, we can say that Montesquieu's observations are flawed. Of course, that does not
derogate from the essential validity and usefulness of his thesis as a model for constitutional
government.
The modern application of Montesquieu's doctrine of separation of powers is exemplified in
the Constitution of the United States of America. Under the American Constitution, the
legislative branch is separate from the executive branch and from the judicial branch. No
member of the executive branch, meaning no secretary of a department (equivalent to a
minister and a member of the Cabinet), may have a seat in the Congress - neither in the
Senate nor in the House of Representatives. Similarly, no judge may at the same time serve in
the Congress or in the executive branch. The underlying philosophy is to prevent the
concentration of power in one branch of government. In America it has worked well for over two
centuries; but we cannot ascribe the credit for the success story to only the doctrine of
separation of powers.
The separation of powers has its inherent disadvantage where one branch refuses to
cooperate or work in harmony with the other branch. It is particularly aggravated by the so-
called checks and balances by which each branch of government seeks to curtail the
excesses of the other. Moreover, in the United States the dividing line between the
executive branch and the legislative branch has been blurred by the huge amount of
delegated legislation that the executive branch promulgates on a regular basis to regulate
almost every facet of public life. The Code of Federal Regulations (CFR) consists of
horrendous volumes of detailed rules and regulations which are overwhelming by their sheer
size. It requires expertise to navigate through the morass of these rules and regulations
which are made by the executive branch through the various departments and
agencies and bureaux. These are in a sense intrusions by the executive branch into the
domain of the legislature, although it is the legislature itself that enacts the primary laws
conferring such legislative powers on the executive branch. Similarly, administrative law
judges perform large and diverse types of judicial functions. They conduct hearings in the
manner not unlike those of judges of the judicial branch and make appropriate adjudications
and determinations, and render rulings, which profoundly affect the lives and livelihood of
most citizens. The Americans have over the years discovered that rigid separation of
powers would frustrate and paralyse good administration and good government.
Looking at our own Constitution, there is express provision directly negating the doctrine of
the separation of powers. We do not go as far as the British, whom Montesquieu apparently
misunderstood, in insisting on a parliamentary executive. However, articles 76, 77 and 78 of our
Constitution stipulate for the executive branch of government to be represented in the
legislature and vice versa. Under article 76, the executive power of the President is exercisable
with a Cabinet consisting of Ministers of State. Then article 78 provides that "...the majority of
Ministers of State shall be appointed from among members of Parliament." Therefore, it is
obvious that some members of the legislature must be also Ministers of State. In fact, the
majority of the Ministers of State must be drawn from the legislative branch, that is from
Parliament. The Constitution of Ghana, therefore, envisages that there shall not be a rigid
separation between the executive and the legislative branches of government. By this
arrangement, the executive branch is able to introduce measures in Parliament and to directly
defend its policies and programmes before the representatives of the people assembled in
Parliament. It provides for a symbiotic co-operation between the legislative and the executive
branches, rather than erecting an impenetrable steel wall between them. This addresses some
of the difficulties in the American system where, because no member of the executive branch
sits in either house of the Congress, the executive must act through party leaders, who are not
executive officers, to introduce legislative and other measures in the House of Representatives
as in the Senate and to explain government policies.
In the light of these observations, we need not appeal to the doctrine of the separation
of powers to resolve constitutional issues which are capable of being decided by the
plain reading of the text of our Constitution. "In his territorial domain, a chief is at the
same time the supreme legislator, the repository of the executive powers of the polity,
the fount of justice, the supreme judge, the fount of honour, and commander-in-chief of
the armed forces."
(See, AKP Kludze, Chieftaincy in Ghana, Austin & Winfield, 2000, page 224).
