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UNDERLYING PRINCIPLES OF THE 1992 CONSTITUTION

Kpegah JSC in Amidu v. Prez. Kuffour stated that, the 1992 constitution of Ghana like most
written constitutions has some underpinning principles which includes, separation of powers,
non-justiciable political question, supremacy of the constitution, defence of the constitution and
the rules on mootness.

Supremacy of the constitution

Article 1(2) and 2(1) of the 1992 constitutions seeks to establish that, the constitution is the
supreme law of the land as it creates government and establishes the limit of powers within
which government must operate. The above articles have been given a practical effect by the
supreme court in Mensima v. Attorney General. The court in that case by a majority of 3:2
stated to the effect that, even though regulation 3(1) or L.I 239 is an existing law which has not
been repealed, article 1(2) has a built in repealing mechanism which affects any law which turns
out to be inconsistent with the constitution. Failure to give effect to this understanding,
misconceives the purpose of article 1(2) of the constitution.

Constitutional supremacy is very distinguishable from parliamentary sovereignty. The concept of

constitutional supremacy under the 1992 constitution is a carry forward from the 1969 and 1979
constitutions. The 1960 constitution established parliamentary sovereignty under article 20,
taking its inspiration from the UK legal system. This led to the strict upholding of the PDA
which greatly influenced the decision in Re Akoto & The 7 Others. However, parliamentary
supremacy has been watered down in UK. Similarly, in Ghana, the court has held on several
occasions that the constitution is the supreme law which prevails over all organs of government
including the parliament. In NPP v. Attorney General (31st December Case), Aikins J stated that
even though parliament has the power to legislate, this was not without limit. Accordingly, the
making of 4th June and 31st December, a public holiday must not be left to linger on grounds of
public policy as against the dictates of the constitution. That will defeat the purpose of article
1(2).

Similarly, in Ghana Bar Association v. Attorney General (Abban Case), where the plaintiffs
had sought for the removal of the interested party as a justice of the supreme court, Heyfron
Benjamin JSC was of the view that, all the plaintiff seeks is the removal of the interested party
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from office as justice of the supreme court. The court has no jurisdiction over the matter since
the constitution itself has make provisions for the procedure for the removal under article 146.
The courts power to ensure justice is limited by the constitution and that, any attempt of the court
to do so will defeat the purpose of article 1(2).

Separation of Powers

According to wade and Bradley in their book, Constitutional and Administrative Law,
Separation of powers is the distribution of power among the various arm of government. Thus,
the concept as adopted by many developing countries is to prevent concentration of power into
one organ of government. Accordingly, the executive power of government has been granted to
the president under article 58(1), legislative power to parliament under article 93(2) and the
judicial powers to the courts by virtue of article 125(3) of the 1992 constitution.

The supreme court in the case of Ghana Bar Association v. Attorney general (Abban case) per
Wiredu J stated that the scope and extent of the doctrine of separation of powers is the fact that
no organ of government should be interfered in the discharge of its constitutional duties by
another. This is why Acher JSC in 31st December case stated that, the court cannot poach its
nose into monies approved by the parliament for government to spend under article 108. That
will defeat the purpose of the democratic concept of separation of powers.

It must be noted that, even though the various arm of government exists independently, it does
not guarantee their existence in Isolation. In Amidu v. president Kuffour, Kpegah JSC in his
dissenting opinion mentioned that, although power has been dispersed among the various arms of
government, it should not be at the expense of harmony. Accordingly, in Tsatsu Tsikata v. Chief
Justice and Attorney general where the plaintiff relying on article 125(4) claimed that the chief
justice cannot be represented by the attorney general as he has been sued in his personal
capacity, as that would breach the concept of separation of powers, the court was of the view
that, the Chief Justice is a public officer and as such any official action of his is answerable by
the attorney general under article 88(5) of the constitution. The court gave example that, even
though the judiciary stands independent in its administration and finances, however, their monies
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are to be released by the executive arm of government through the ministry of finance. Article
78, article 106, 148, 144

Non Justiciable political question

The doctrine of political question is an American constitutional doctrine propounded in the

American case of Barker v. Carr. The doctrine is to the effect that, where a particular matter has
been entrusted in the hands of the legislature or the executive arm of government alone, same
cannot be questioned by the judiciary. This is because the doctrine if founded on the principle of
separation of powers. The supreme court of Ghana has on a number of occasions addressed the
issue of whether the doctrine of political question is applicable in Ghana and to what extent.

First, in the 31st December case, the NPP has sued for an enforcement action for a declaration
that the making of 4th June and 31st December as public holidays to celebrate the coupe de etat of
1981 and the use of public finance for same was inconsistent with the spirit of the constitution.
The defence argued that the making of public Holiday was an activity which has been solely
assigned to parliament to perform and as such the court has not jurisdiction to determine. The
court with a majority of 5:4 dismissed the attorney General’s assertion and stated that, the power
of parliament to make laws is not unlimited. Therefore, the court has jurisdiction to hear any
matter which is brought under article 1(2), 2(1) and 130 in relation to a law made under the
public Holiday’s law. (PNDC 220). It must be noted that, the whole constitution is a political
document as it assigns all duties to specific entities, however, limits their power by virtue or
article 2(1). Therefore, the doctrine is not applicable in Ghana.

Second, in the Abban case (supra), the court was of the view that the doctrine is applicable in
Ghana. In that case, the plaintiff’s case was that, the interested party does not morally qualify to
be appointed chief justice of Ghana. The defence was that, such an appointment on moral
grounds could only be determined by the president who appoints with approval from parliament.
Kpegah JSC relied on Tuffour v. Attorney General as a local authority for the court’s assertion.
The court however dismissed the matter on grounds that, it has no jurisdiction since the removal
of justices of the supreme court has a constitutional procedure under article 146.
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Third is the case of JH MENSAH v. Attorney General. Here the plaintiff brought an action for a
declaration that the president’s conduct of maintaining some of his previous ministers without
prior approval by parliament was unconstitutional. The defence argued that, the matter of the
process of approval (vetting) was a political question which cannot be determined by the court.
The court upheld the objection by stating that, parliament have been given the power to regulate
its processes and as such anything done by parliament is a closed book which cannot be
determined by the court. The constitution only provided that such appointment should be
approved. However, no provision was made as to how the approval should be done. Therefore,
the process by which parliament approves the appointment is political question which cannot be
determined by the court, the matter is different if no approval was made at all. The current
position as it stands is that, to determine whether a question is justiciable or not, it must be
considered whether the court can determine the duty asserted at its breach. Aikins J relying on
Powell v. McCormark

In Justice Adullai v. Attorney General, the supreme court explain that, the doctrine only applies
where what have been done does not breach the constitution in anyway.

Doctrine of mootness.

This doctrine is to the effect that, where in a pending suit there has been change of circumstances
which renders the determination of the action irrelevant, the court shall declare the action as
moot and discontinue its determination. In the America case of De Funis v. Odegaard, where the
plaintiff brought an action for a declaration that his exclusion from admission to the law school
was unconstitutional, the court declared the action as moot when it realized that, at the time of
hearing, the applicant has actually been admitted. See also, Powell v. McCormack

In the Ghanaian jurisprudence, the matter arose in JH MENSAH v. Attorney General where the
defence raised a preliminary objection that, the action was moot since at the time of hearing, the
president had submitted the names of the retained ministers for approval. However, the court
rejected this and stated that, the action was still alive since the submission of the names to
parliament does not clear the air that what parliament did was unconstitutional. The court laid
down a test as to when to declare an action moot. The court was of the view that, the court will
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only declare an action moot, if it is satisfied that, the mischief in question is reasonably not likely
to re-occur in the future. Aikins JSC was of the view that, the tension created by the
announcement by the president to maintain his ministers is enough to push the court to determine
on the matter for our constitutional development.

Subsequently, in Amidu v. President Kuffour, the plaintiff brought an action for a declaration to
the effect that, the president has appointed three persons to the office of the president under Act
463 without consultation with the council of state, and as such, unconstitutional. However, at the
time of the hearing, the alleged appointees have actually been appointed as ministers with
approval by parliament. The court found that, the plaintiff’s case was pointless and needed to be
declared moot since the alleged appointment was not under Act 463 as claimed by the plaintiff.
As such nothing more was left to be determined by the court. Hence, the court upheld the
doctrine of mootness.

Directive Principles of State Policy

Chapter 6 of the 1992 constitution provides for the directive principles of state policy.
Particularly, article 34 (1) of the constitution provides that, (1) The Directive Principles of State
Policy contained in this Chapter shall guide all citizens, Parliament, the President, the
Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in
applying or interpreting this Constitution or any other law and in taking and implementing any
policy decisions, for the establishment of a just and free society. Accordingly, the directive
principles serve as a guide to the social, economic and political wellbeing of the state. It spells
out the responsibilities of the citizens under article 41 of the 1992 constitution.

The directive principles of state policy are generally non-justiciable. Gleaning from paragraph
94, 95 and 96 of the report of the committee of expert in relation to the justiciability of the
directive principles of state policy, it has been provided that the directive principles of state
policy are non-justiciable in itself, unless it has been adopted for the purposes of interpretation.
However, the subsequent case of NPP v. Attorney General (31st December case) has held to the
effect that, per the wording of article 2(1) of the constitution, the whole constitution as a political
document is justiciable for the purpose of both enforcement and interpretation. The court also
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opined that, the DPSP was not meant to be non-justiciable that is why paragraph 94 of the
committee of expert report did not reflect in the final version of the 1992 constitution. The only
precondition being a breach of a provision under the chapter.

Fast forward, in Npp v. Attorney general (CIBA case), the court per Bamford Addo JSC and
Sophia were of the view that, the directive principles of state policy under chapter 6 which are
enforceable must be distinguished from those which are not directly enforceable. The learned
Judges explained that, where there is a provision under chapter 6 which has a direct connection
with a provision under chapter five of the constitution, a breach of the later shall automatically
lead to a breach of the related provision under the directive principles of state policy, thereby
making it justiciable. Accordingly, it was held in Ghana Lotto Operators Association v. NLA
that, the Act 722 which sought to monopolize lottery business to the NLA was void as it was in
breach of article 36(2) of the 1992 constitution which was in connection with article 21(1) e. In
conclusion, the directive principles of state policy are presumably justiciable in Ghana unless
otherwise proved by a party.

With regards to constitutional interpretation, directive principles of state policy serve as a

guide to the judiciary in the interpretation and enforcement of the constitution. Therefore, the
supreme Court in the exercise of its original jurisdiction under article 2(1) and 130 must consider
the directive principles of state policy as a guide since the DPSP does not only direct the
executive and legislature, but also the judiciary. Accordingly, in NPP v. IGP, Heyfron
Benjamin JSC opined that, in construing article 21(1)d the court must take into consideration
the political objective under article 35 which is a part of the directive principles of sate policy
seeking to ensure the individual’s right of engaging in peaceful processions.

Defence of the constitution

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RULE OF LAW

The concept of rule of law as Defined by Professor A.V Dicey in his book 'Introduction to the
study of the law of the Constitution’ means, the absolute supremacy or predominance of the
regular law as opposed to the influence of arbitrary power and excludes the existence of
arbitrariness or even of wide discretionary authority on the part of the government. In simpler
terms, rule of law connotes the idea of a state governed by the law. Below are the basic tenants
which underpins the concept of rule of law.

i) Supremacy of The Law.

A.V Dicey postulates that every act must be controlled by law for the attainment of effective
governance and check on the powers of government. In other words, there should be a lack of
arbitrariness or wide discretionary powers. This is because people are ruled by law and law
alone. The government is therefore subject to the law and the exercise of government power
must conform with the law. Accordingly, article 1(2) of the 1992 Constitution of Ghana provides
for supremacy of the law. The Constitution is the supreme law of the land and any action which
is inconsistent with the Constitution is null and void to its degree of inconsistency. In Npp v.
Attorney General (31st December case), the supreme court stated that the Constitution is the
highest law of the land and that all governmental actors and actions must be within its ambit.
Article 296 of the 1992 constitution also place limitations on the exercise of discretionary powers
so as to eradicate arbitrariness and dictatorship.

ii) Equality Before the Law.

The idea of equality is pivotal to rule of law. Under this manifestation, all persons in a state
regardless of their class, status, gender and other circumstances are equal before the law.
Individuals are to be given the same treatment with no discrimination merely on the basis of
gender, ethnicity, social status, race, education or any other standard not justified by law.
Consequently, the rights and liabilities of the people are equal with an equal protection of
individual rights. This is reflected under Article 17(1)(2) and (3) of the 1992 constitution. In the
case of Ghana Commercial Bank v. Commission on Human Rights and Administrative Justice
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where the GCB had different rules for various employees, the supreme court quashed the law and
its application holding that under article 17 all individuals shall be equal before the law.
It must be emphasized that, even though persons are to be treated equally in light of this
manifestation, the supreme court has held in Nartey v. Gati that, the said equality is not absolute
since rigid treatment of people equally will not yield a proper result. Accordingly, the import of
article 17 was that, persons of equal categories must be treated equally while person of another
category must be treated as equal as possible provided there is a reasonable justification which
does not contradict the spirit of the constitution.

iii) Enforcement of human rights by Private action in accessible courts

Enforcement of human rights by private action in accessible courts constitutes the third aspect of
Dicey's prong manifestations of rule of law. Accordingly, for the maintenance of rule of law and
the advancement of a good and effective government, it is imperative for citizens have the legal
standing to contend for the enforcement of their private rights from being infringed by other
individuals and the government. For this reason, there must be accessible courts ready to protect
and enforce the rights of citizens whenever the need be. This is reflected under Article 33 of the
1992 constitution which stipulates that anyone whose rights have to been infringed or is likely to
be infringed can seek for redress and enforcement of such rights at the high court. This was
explained in the case of Edusei v. Attorney General where the supreme court stated that the
supreme court has only an appellate jurisdiction with regards to human rights enforcement.
However, an interpretation of human rights provision is exclusively reserved for the supreme
court. In light of this, article 130(2) makes stipulations to the effects that, where in a matter
pending before the High Court, a question of interpretation arises, the court shall stay
proceedings and refer the matter to the Supreme court for address and the decision of the
supreme court shall be binding on the high court.