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© F A R Bennion Website: francisbennion
Doc. No. 1962.001 Butterworths, 1962
Any footnotes are shown at the bottom of each page
For full version of abbreviations click ‘Abbreviations’ on FB’s website
CONSTITUTIONAL LAW OF GHANA
Francis Bennion
PART I - THE REPUBLICAN CONSTITUTION
CHAPTER 2
THE CREATION OF THE REPUBLIC
1. Legal Difficulties
Ghana was the first member of the Commonwealth to provide herself with a republican
Constitution without having had the means for doing so expressly indicated by United Kingdom
legislation. Both India and Pakistan, Ghana's precursors as Commonwealth republics, had been
provided with Constituent Assemblies by the Indian Independence Act, 1947. Burma is in a
different category, having become overnight a republic outside the Commonwealth by virtue of a
treaty made between the British Government and the Provisional Government of Burma and of the
provisions of the Burma Independence Act, 1947.* Since no Constituent Assembly had been
provided for by the Ghana Independence Act it became necessary to give careful consideration to
the means whereby a republican Constitution could be enacted. Not even the existence in the first
place of a Constituent Assembly with unchallengeable powers had saved Pakistan from acute
constitutional difficulties in trying to turn herself into a republic and it was felt that every care must
be taken to avoid the possibility of doubt arising as to the validity of Ghana's new Constitution. At
first it was assumed that the Constitution could be enacted by the Parliament of Ghana in the same
way as an ordinary Act. It would no doubt be desirable to avoid embodying the usual enacting
formula, with its reference to the Queen, in the Constitution itself but this could be done by the use
of a device such as the inclusion of the Constitution in a Schedule to the Act bringing it into force.
An examination of the provisions relating to the powers of the Parliament of Ghana however gave
rise to doubts as to whether it would be wise to follow this course.
The powers of the Parliament of Ghana derived from the First Schedule to the Ghana
Independence Act, 1957 and s. 31 of the Ghana (Constitution) Order in Council, 1957. The First
Schedule
1 See Halsbury's Laws (3rd Edn.), Vol. 5, p. 458.
74
CHAP. 2.—The Creation oj the Republic 75
contained six paragraphs. 1 The first three reproduced, with the same
wording apart from consequential alterations, ss. 2 and 3 of the Statute of
Westminster, 1931. By these it was provided that the Colonial Laws
Validity Act, 1865 2 would not apply to laws made by the Parliament of
Ghana, that such laws would not be inoperative on the grounds of
repugnancy to the law of England or any existing or future British Act, and
that the Parliament of Ghana had full power to repeal or amend British
legislation forming part of the law of Ghana and to make laws having
extraterritorial operation. The fourth and fifth paragraphs contained minor
consequential amendments to the Merchant Shipping Act, 1894 and the
Colonial Courts of Admiralty Act, 1890. The final paragraph withheld the
power to alter the 1957 Constitution otherwise than in the manner
specified in that Constitution. Section 31 of the 1957 Constitution stated:
" Subject to the provisions of this Order, it shall be lawful for
Parliament \sc. the Ghana Parliament constituted by the Order] to
make laws for the peace, order and good government of Ghana."
The Order contained several provisions expressly limiting the legislative
power. Section 31 (2) and (3) and s. 34 restricted the power to make laws
imposing disabilities on racial grounds, or depriving persons of freedom of
conscience or religion, or providing for compulsory acquisition of
property. Sections 32 and 33 restricted the power to make laws altering the
constitutional provisions, or changing regional boundaries, by requiring
such laws to be passed by a special procedure. It will be seen that,
whatever the political intention behind the enactment of these provisions,
they were in form somewhat removed from a clear grant of full legislative
sovereignty. The provisions of the First Schedule were mainly negative in
form while the legislative power conferred by the 1957 Constitution was
clearly limited. By using the special procedure laid down by ss. 32 and 33
of the 1957 Constitution the Ghana Parliament in 1958 removed those very
sections from the Constitution, and also repealed paragraph 6 of the First
Schedule to the Ghana Independence Act. 3 The other restrictions
remained, although there is a strong argument for
1 See Appendix A, p. 467, post.
2 See p. 18, ante.
3 See p. 69, ante.
CHAP. 2.—The Creation of the Republic 77
England, or to the provisions of any existing or future Act of the
Parliament of the United Kingdom."
This follows precisely the wording of paragraph 1 (2) of the First
Schedule to the Ceylon Independence Act, 1947, which in turn was derived
from s. 2(2) of the Statute of Westminster, 1931. Doubt exists as to
whether the reference to any existing or future Act includes a reference to
the Act in which it appears. It is tempting to say that there is no receptacle
between the present and the future which, at the moment when an Act
comes into operation, is large enough to accommodate the Act. The Act at
this moment must either be an existing Act, because it has just come into
existence, or (if it has not just come into existence) it must be future Act.
This reasoning was not followed by the British Parliament when it enacted
the Indian Independence Act, 1947, s. 6(2) of which prevents any law
made by the legislature of either of the new Dominions created by that Act
from being invalid on the ground that it is repugnant to " this or any
existing or future Act of Parliament of the United Kingdom ". This
difference in the wording of the two Independence Acts of 1947 gave rise
to considerable comment, though the general view seems to have been t hat
it did not indicate a difference in substance. Thus Professor K. C. Wheare
said:
" In the Ceylon Act, as in the Statute of Westminster, the powers
conferred relate to ' any existing or future Act of Parliament '. This
raises a controversy. Does the difference in wording amount to
anything? Does it mean that Ceylon cannot amend its Independence
Act, just as, it has been maintained, the Dominions cannot amend the
Statute of Westminster? Is the Independence Act or the Statute an '
existing ' Act of Parliament? If it is—and the case for this view seems
sound— why was it thought necessary to include ' this ' in the Indian
Independence Act? If, ' this ' was put in to resolve doubts for India
and Pakistan, why was it not done for Ceylon also? Is some limitation
intended upon Ceylon's legislative competence? These questions have
aroused some discussion in Ceylon. It may not console the people of
Ceylon to know that the difference is probably due to nothing more
than a difference of draftsmen." 1
Again, Geoffrey Marshall finds the distinction " insignificant '' and goes
on to remark that nothing in the legislative intention of the United
Kingdom Parliament seems to justify the conclusion that the
Parliament of Ceylon is unable to legislate
1 Journal of Comparative Legislation, 3rd Series, Vol. XXX, p. 80.
78 PART I.—The Republican Constitution
repugnantly to, or to amend, the Ceylon Independence Act. 1 Despite these
doubts the United Kingdom Parliament enacted the " repugnancy "
provisions for Ghana in exactly the same terms as for Ceylon. This may be
taken to indicate that Parliament thought the doubts so trivial as to be
beneath notice or that it wished to indicate that there was a difference of
substance between the Indian and Ceylon provisions. Either view is
possible, but the former seems more likely to be correct. It had indeed been
already acted on in Ghana, the Constitution (Repeal of Restrictions) Act,
1958 (No. 38) having repealed paragraph 6 of the First Schedule to the
Ghana Independence Act. 2
In the light of these difficulties there seemed to be three different
methods of procedure open. These were:
1. To disregard the doubts and proceed to pass the republican
Constitution as an ordinary Act of Parliament.
2. To pass an Act of Parliament under the procedure laid down by s.
1 (1) (a) of the Ghana Independence Act by which the Parliament of
Ghana requested and consented to the enactment by the Parliament of the
United Kingdom of an Act confirming that the Parliament of Ghana had
since its inception possessed full legislative power, including power to
withdraw Ghana from Her Majesty's Dominions and to remove the
Queen as an organ of Parliament.
3. To make the new Constitution " autochthonous " by basing it
firmly on the will of the people. This could be done by the holding of a
referendum on the instructions of the Cabinet and the subsequent
enactment by the National Assembly, as a Constituent Assembly
deriving its authority from the verdict of the people in the referendum, of
the new Constitution. 3
The second course was ruled out on political grounds. The third was felt
to involve too great a danger of matters getting out of control: the
referendum would not be conducted under the authority of any Act, and it
might not therefore be possible to
1 Parliamentary Sovereignty and the Commonwealth, Oxford, 1957, p. 126.
2 The wording was changed in the Nigeria Independence Act, 1960, to
read: "... repugnant to the law of England, or to the provisions of any
Act of the Parliament of the United Kingdom, including this Act
(Sch. I, para. 2). 3
On the question of autochthony see Wheare, Constitutional Structure of
the Commonwealth, Chap. IV; Robinson, Constitutional Autochthony in
Ghana, the Journal of Commonwealth Political Studies, 41.
80 PART I.—The Republican Constitution
time available for the preparation of the Constitution, they were rendered of
small account by the prevailing political conditions. There might be much
dispute in Ghana as to the form a new Constitution should take, but there
was a unanimous view that Ghanaians were since independence free to
choose their own form of government. 1 Nor was any dissenting voice to be
heard from the United Kingdom, where the authorities were sympathetic to
Ghana's aspirations and ready to assist their fruition. The political realities
were overwhelmingly in favour of brushing aside legalistic doubts and
pursuing a straightforward course. In the end the course actually followed
was a combination of the first and third procedures mentioned above.
2. THE CONSTITUENT ASSEMBLY AND PLEBISCITE ACT
Under the 1957 Constitution the constitutional conventions attaching to
the British Crown were expressly applied to Ghana. 2 Whether or not these
conventions can be said to include the doctrine that fundamental legislation
should not be enacted without a " mandate " from the electorate, this
doctrine was in fact recognized as valid in Ghana. Sir Ivor Jennings has
pointed out that the doctrine is not limited to the United Kingdom:
" President de Valera declared in 1932 that the Dail could not deal
with the question of separation from the British Commonwealth of
Nations because, though his Government had a mandate for removing
the oath from the Constitution and for suspending the payment of the
land annuities, it had no mandate to create a republic." 3
The Ghana Government had no mandate at the beginning of 1960 to
create a republic, and readily acknowledged the fact. As Mr. Ofori Atta, the
Minister of Local Government, put it in the National Assembly:
1 Speaking in the debate on the draft republican Constitution, Mr. J. A
Braimah, who had transferred from the United Party to the C.P., said:
" In rising to make my humble contribution to this debate, my mind
automatically goes back to the Atlantic Declaration of August, 1941,
which stated among other things that the signatories ' respect the right of
all peoples to choose the form of government under which they will live '.
In the exercise of this undoubted right, Ghana has therefore decided to
choose the form of government under which her people will live and no
one, in or outside this country, can quarrel with that desire." (Proceedings
of the Constituent Assembly, 2 19.)
3 By s. 4 (2).
The Law and the Constitution (4th Edn.), p. 165.
CHAP. 2.—The Creation of the Republic 81
" The present Members of Parliament were however not elected by
the people for the purpose of enacting a republican constitution and
the question of a republic was not an issue at the last general election.
At that election, of course, certain constitutional principles were
settled. The people voted for a unitary form of government and
rejected a federal form of government. Nevertheless, it cannot be said
that this House, as at present constituted, has a mandate from the
people to adopt or make on their behalf, any particular form of
republican constitution." 1
The Government decided to seek a mandate, and took the view that the
people should be asked to vote not merely on the simple question of
whether Ghana should become a republic or not, but also on the broad
principles to be adopted in framing the new Constitution. It was also
thought desirable, assuming the people would support a change to
republican status, to find a means of enabling them to choose the person
they wanted as the new head of state. Furthermore there was the question
on whom the mandate to enact a new Constitution was to be conferred.
The United Party, who constituted the official Opposition, took the view
that there should be a Constituent Assembly which would be
"... an entirely new body elected and appointed freely to represent all
the interests of the country, i. the Members of Parliament, Chiefs,
the University Colleges (Legon and Kumasi), the Churches, the
Muslim Council, the Professional Associations, the Chambers of
Commerce, the Farmers' Unions, the T.U., the Co-operative
Societies, the Ex-servicemen's Organisations, the Ghana Women's
Federation or Council and the political parties." 2
However, in the Government's opinion, which prevailed, the existing
Members of Parliament themselves were best fitted to form the
Constituent Assembly:
" They were chosen by the people at the last general election to
represent them in making laws for Ghana and it is therefore right that
Members of Parliament and not other persons who have not been so
chosen should constitute the Constituent Assembly." 3
The Constituent Assembly and Plebiscite Bill was accordingly
introduced into the National Assembly on 23rd February, 1960. Of the two
main clauses, which were not altered during the passage
1 Pari. Deb. Official Report, Vol. 18, col. 7 (23rd February, 1960).
2 Pari. Deb. Official Report, Vol. 18, col. 46.
3 Ibid., col. 7 (speech of Mr. Ofori Atta).
D
CHAP. 2.—The Creation of the Republic 83
also served to indicate that the powers of the Constituent Assembly were
not limited to enacting a Constitution, as indeed was shown by the words "
or in connection with " in the opening passage of clause 2. If the powers
had been so limited, argument might have arisen as to what provisions
were within the scope of a Constitution and in any case it was already the
intention of the Government to introduce a number of other Bills of a
constitutional nature apart from the Constitution itself.
Clause 2 went on to provide that the existing law governing the National
Assembly (except s. 42 of the 1957 Constitution) should apply with any
necessary modifications to the Constituent Assembly, and that " subject to
the provisions of any enactment made by the Constituent Assembly "—a
reference to the new Constitution, which would abolish the legal existence
of the old National Assembly—nothing in the Bill was to affect the
working of the National Assembly as such.
Clause 3 enabled a constitutional plebiscite to be held:
" In order, before passing a Bill for a new Constitution, to inform
itself as to the wishes of the people on the form of the Constitution, or
the person who is to become the new Head of the State or any other
matter, the Constituent Assembly may order the holding of a
plebiscite to determine such questions as the Constituent Assembly
may direct."
Although power to hold a referendum already existed under the
Referendum Act, 1959 (No. 10), it was felt that this should not be used for
testing opinion on the republican issue. Under that Act the referendum
would have had to be ordered by the Governor-General, whereas it seemed
more appropriate, since the task of constitution-making was entrusted to
the Constituent Assembly, to place control over the questions to be asked
and other relevant matters in the hands of that body. Although the two
main questions had already been chosen in principle by the Government,
clause 3 allowed other questions to be put if it was later thought necessary
to do so. This power did not in fact have to be used.
Clause 3 went on to give the Constituent Assembly power to make
regulations governing the detailed procedure of the plebiscite. In view of
recent by-election disturbances, this power was made sufficiently wide to
enable public order to be maintained by the control of the movement and
assembly of persons and the supply of intoxicating liquor. Power to
provide for requisitioning of vehicles and buildings was also given.
84 PART I.—The Republican Constitution
Clause 4 of the Bill, which was the only one to be amended,
dealt with its duration. As introduced, this provided that the
Act was to be automatically repealed on the coming into
operation of a Constitution enacted by the Constituent
Assembly. It was amended so as to delete this repeal while
taking away the right of the National Assembly to resolve
itself into a Constituent Assembly once the new Constitution
had come into force. One reason for the change was a
technical one connected with the passing of a new
Interpretation Act. The other was to enable the measure to
remain on the statute book " so as to explain how Acts were
enacted by the Constituent Assembly."
1
In view of the fact
that the repeal of an Act does not affect its previous operation
or anything done under it 2 no harm would be caused by
repeal, although the Act may perhaps be allowed to remain as
a historical document.
While the United Party criticised the Constituent Assembly
and Plebiscite Bill on points of detail they did not press their
opposition to a division at any stage. The Bill was passed on
25th February, 1960, received the Royal Assent the same day
and came into operation on its publication as a supplement to
the Ghana Gazette two days later. 3
So that the Constituent Assembly should not find itself in
procedural difficulties at its first meeting, the National
Assembly passed a special motion on 29th February. This
provided that the Standing Orders of the National Assembly
were to apply for the purposes of the Constituent Assembly
subject to certain modifications. On any day appointed for the
transaction of business by the Constituent Assembly, the
Speaker was required, at the conclusion of National Assembly
business, to put the question " That this House do now resolve
itself into a Constituent Assembly ", which was to be decided
without amendment or debate. At the end of Constituent
Assembly business the National Assembly was automatically
to resume. The Speaker was enabled to take the chair at the
Committee stage of Bills, and minor adjustments were made
to the procedure for the passing of Bills. 4
1 See Pari. Deb. Official Report, Vol. 19, cols. 11 and 61
2 Interpretation Act, 1960 (C. 4), s. 8.
3 The text of the Constituent Assembly and Plebiscite Act is given in
Appendix A, p. 470, 4 post.
Minutes of the National Assembly, 29th February, 1960. The motion
was later amended to allow Bills to be introduced before the prescribed
period had elapsed after publication: Minutes of the National Assembly
7th June, 1960.
86 PART I.—The Republican Constitution
2. That the Head of State and holder of the executive power should
be an elected President responsible to the people.
3. That Parliament should be the sovereign legislature and should
consist of the President and the National Assembly, and that the
President should have a power to veto legislation and to dissolve
Parliament.
4. That a President should be elected whenever there is a general
election by a method which insures that he will normally be the leader
of the party which is successful in the general election.
5. That there should be a Cabinet appointed by the President from
among Members of Parliament to assist the President in the exercise of
his executive functions.
6. That the system of courts and the security of tenure of judges
should continue on present lines.
7. That the control of the armed forces and the civil service should
be vested in the President." 1
It was explained that these seven points constituted the essence of the
Government's proposals. The Government would not consider itself bound
to introduce a Constitution Bill which followed word for word the draft in
the White Paper, since, in the light of reactions to the draft, changes of
detail, arrangement and emphasis might be found desirable. However, if
the people approved the proposals, the seven points would be treated as
fundamental.
The constitutional proposals were received with keen interest by the
world press. British comment was on the whole favourable. The Times
expressed the view that:
" It is an ingenious constitution, avowedly aimed at efficient
government during the early stages of development and expertly
framed to suit Ghanaian conditions." 2
The Daily Mirror, under the heading " Good Luck Ghana! ", said:
" The new Constitution puts paid to any idea that Ghana is heading
for dictatorship." 3
The Manchester Guardian found that:
" Altogether, the draft Constitution seems quite a promising one,
and there is no reason why Ghana should not remain a welcome
member of the Commonwealth under it." 4
1 W. P. No. 1/60, p. 16.
2 Issue of 7th March, 1960.
3 Issue of 7th March, 1960.
4 Issue of 7th March. 1960.
CHAP. 2.—The Creation of the Republic 87
The Irish Independent said of the proposal to couple the election of the
President with that of Members of Parliament:
" This is an arrangement without precedent and, on paper, is full of
promise. It combines strong government with democracy, something
which older countries have often failed to achieve." 1
In the United States the draft Constitution was generally welcomed as
marking the final emancipation of Ghana from colonial rule. The
Washington Post commented:
" What makes the move of special significance is that Ghana, as
the first West African country to attain full independence from
colonial status in 1957, is in many respects the bellwether for the
continent during an exciting period." 2
On the other hand the reception in South Africa was generally cool. The
Natal Witness referred to " Black Bonapartism ", while the Pretoria News
found the proposals a serious departure from British democratic principles.
In France, L'Information described the draft Constitution as at the same
time authoritarian and expansionist. All over the world, whatever the
attitude adopted, great interest was shown and the press devoted much
space to describing and examining in detail the blue-print for Ghana's
republican future.
In Ghana itself the press reaction was predictable. The Ghana Times
and the Evening News, both strong Government supporters, gave the
proposals an enthusiastic welcome. The British-owned Daily Graphic
printed the entire draft Constitution and advised those who liked the draft
to accept it and those who disliked it to reject it. The Ashanti Pioneer, at
that time an Opposition newspaper, was outspokenly critical.
The first sitting of the Constituent Assembly took place on 14th March,
1960. The Prime Minister, Dr. Nkrumah, moved
" That the Constituent Assembly recommends to the people of
Ghana the Government proposals for a republican Constitution set
out in the White Paper issued on the 7th March, 1960."
His opening words were:
" It is with joy and pride that I appear this morning, before the
representatives of the people of the nation of Ghana here gathered in a
Constituent Assembly, to move this motion. I do so with thankfulness
to the dead and the living, who by their sweat, blood and sacrifice
have made possible the victory of
1 Issue of 26th March, 1960.
2 Issue of 22ud March, 1960.
CHAP. 2.—The Creation of the Republic 89
the holding of the plebiscite. 1 Voting was to take place in
specified parts of Ghana on three different days so that the
limited numbers of polling staff and police available could be
moved from one place to another. Provision was included for
the dates to be changed by Gazette notice if necessary, and in
fact this had to be done. 2 The order provided for nominations
for the office of Head of State under the new Constitution.
The candidate had to be a citizen of Ghana who had attained
the age of thirty-five, and the nomination form had to be
signed by not less than ten Members of Parliament. As the
names of the candidates could not definitely be known until
the period for nominations had elapsed (it was thought that
the Opposition might boycott the plebiscite), the order left the
actual questions to be determined at a future time. The
candidates nominated were Dr. Nkrumah and Dr. J. B.
Danquah, the doyen of the United Party. 3 When the closing
date for nominations had passed, the Constituent Assembly
made a further order directing two questions to be submitted
for the determination of the voters. 4 These were:
"1. Do you accept the draft republican Constitution for
Ghana as set out in the White Paper issued by the
Government on 7th March, 1960?
2. Do you accept Kwame Nkrumah or Joseph Boakye
Danquah as the first President under the new
Constitution? "
The White Paper had stated that the Government would
propose to the Constituent Assembly that voting should be
on a parliamentary constituency basis, so that the people of
Ghana would know not only the total number of votes cast
but also the state of opinion in each constituency. 6 This was
accordingly provided for in the detailed regulations made by
the Assembly to govern voting procedure. 6 The regulations
closely followed those in force for general elections. Both
the Opposition and Government parties were entitled to have
polling agents present in every polling station as a check
against irregularities, and also to have a counting agent in
each constituency to witness the counting of votes. There
were four ballot boxes in each polling station, and the voter
was given two papers. One was to be put either in the
1 Constitutional Plebiscite Order, 1960 (E. 73).
2 Ghana Gazette, 30th March, 1960.
3 Ghana Gazette, 21st March, 1960.
1 Constitutional Plebiscite (Questions) Order, 1960 (E. 75).
6 W. No. 1/60, p. 7.
6 Constitutional Plebiscite Regulations. 1960 (E. 74).
####### [f
90 PART I.—The Republican Constitution
box bearing the word " yes " in white on a red ground or the
box bearing the word " no " in black on a white ground, indi-
cating approval or disapproval of the draft Constitution. The
other was to be put either in the box bearing the photograph
of Dr. Kwame Nkrumah and the red cockerel symbol of the
C.P. or in the box bearing the photograph of Dr. J. B.
Danquah and the cocoa-tree symbol of the United Party. 1
Apart from answering the two questions posed, the votes were
to serve an additional purpose. The Government had pointed
out that the plebiscite would correspond very nearly to a
general election. The Presidential candidates were the
respective leaders of the only two political parties in the
country, and voting was on a constituency basis. It would thus
be possible to tell in which constituencies the Government
and the Opposition had a majority. The Government had
accordingly announced that if the Presidential election
showed that there would be little change in the balance of
parties in the Assembly if a further general election were held,
they would treat this as a mandate to extend the life of the
existing Assembly, which was due to be dissolved by July,
1961 at the latest. 2
The public were informed of the holding of the plebiscite,
the issues involved and the method of voting in a number of
ways. Apart from the issue of the White Paper and the
widespread newspaper coverage, a large number of posters
were put up all over the country. Among these were posters
setting out the seven points listed in the White Paper. The
posters were printed in English and in nine of the vernacular
languages, including Twi, Fante, Ga and Ewe.
The plebiscite was held on 19th, 23rd and 27th April, 1960,
and proved a triumph for the Government. Dr. Nkrumah was
elected as first President in all but two of the 104
constituencies, obtaining 1,015,740 votes as against 124,
cast for Dr. Danquah. Only in one constituency was there a
majority against the draft Constitution, which was approved
by 1,009,692 votes to 131,393. 3 The great interest aroused
was indicated by the fact that more than half the registered
electors voted. 4
1 Constitutional Plebiscite (Symbol) Regulations, 1960 (E I 76)
2 W. No. 1/60, p. 11.
3 Ghana Gazette, 14th May, 1960.
4 The exact proportion was calculated at 54%. Surprisingly, in view
of its high illiteracy rate, the biggest proportion was in Ashanti, where 76 "/
of the registered electors voted.
°
92 PART I.—The Republican Constitution
That no person should be deprived of his property save where the
public interest so requires and the law so provides. 1
Following a suggestion made by Government backbenchers, 2 the position
of the Chief Justice was altered to enable him to be dismissed at will from
his office of Chief Justice, though not from his judgeship. 3 As the
Memorandum explained, the new version
" assimilates the position of the Chief Justice to that of Lord
Chancellor in England. The Chief Justice must be a Judge of the
Supreme Court, and cannot be removed from his judgeship. 4 He may,
however, be removed as Chief Justice if the President thinks fit. His
capacity as Chief Justice makes him the administrative head of the
Judicial Service, and in relation to such non-judicial functions it is
considered that the President ought to be in a position to ensure that
the Chief Justice will give his loyal co-operation."
Criticism had been aroused by a provision in the first draft which gave
the President unfettered discretion to grant loans from public funds. This
was met by giving the National Assembly power to require any agreement
for a loan to be submitted for their ratification. 5 The opportunity was also
taken to entrench the article charging the public debt on the general
revenues and assets of Ghana. 6 The criticism that the Attorney-General
appeared to be given power by the first draft to discontinue civil
proceedings brought against the Republic was met by an amendment
making it clear that this was not so.' Other changes that should be
mentioned here were as follows. The article listing the laws of Ghana was
completely altered. 8 The system of courts was
1 Article 13 (1).
2 See p. 88, ante.
3 Article 44 (3).
4 I., without a vote of two-thirds of the members of the National
Assembly. 6
6 Article 35 (2).
Article 37 (2).
' Article 47 (2). 8
Article 40. The original version stated that the laws comprised:
" (a) indigenous laws and customs not being repugnant to natural justice,
equity and good conscience, in so far as their applica tion is not
inconsistent with any enactment for the time being in force, and
(b) the doctrines of common law and equity, in so far as their application
is not inconsistent with such indigenous laws and customs or with any
enactment for the time being in force, and
(c) enactments for the time being in force made under powers conferred
by the Constitution or previously existing."
CHAP. 2.—The Creation of the Republic 93
modified—instead of a Supreme Court functioning both as a
Court of Appeal and a High Court, two separate superior
courts were established, namely the Supreme Court and the
High Court. 1 The Supreme Court was made the final court of
appeal and also given an exclusive original jurisdiction over
questions as to the validity of legislation. 2 The section
dealing with the Civil Service was widened to cover the
Public Services generally. 3 In consequence the article
establishing the Civil Service Commission was omitted, and
mention was made of the police. To emphasize its civilian
character, in the words of the Memorandum, the description
of the police was changed from Police Force to Police
Service.
Before the second reading of the Constitution Bill, which
took place on the day it was introduced, the Constituent
Assembly passed a procedural motion governing the
Constitution Bill and all other Bills to be passed by the
Constituent Assembly. This was necessary because the
Ordinances Authentication Ordinance (Cap. 2) had been
disapplied by s. 2(3) of the Constituent Assembly and
Plebiscite Act, 1960 (No. 1). Provision had therefore to be
made for such matters as the authentication, numbering and
publication of Acts of the Constituent Assembly. 4 The
motion was on similar lines to those subsequently laid down
for Republican Acts by the Acts of Parliament Act, 1960
(C. 7).
The second reading debate passed off quietly. The results
of the plebiscite left the Opposition little scope for objection
to the Bill and they were in any case appeased to some extent
by the fact that alterations had been made in the Bill to meet
their criticisms. Mr. Dombo, the Leader of the Opposition,
remarked:
" I think most of the criticisms we levelled against this
Constitution have been met and for that reason I say well
done to the people who have redrafted it." 6
He continued to find objectionable however the statement in
art. 8(4) that the President is not obliged to follow advice
tendered by any other person. This had been widely
criticized as contravening the customary principle that a
chief, though by forms and ceremonies appearing autocratic,
was in reality bound
1 Article 41.
2 Article 42 (2).
3 Part VIII.
4 The text of the motion is given in Proceedings oflhe Constituent A ssembly,
161.
5 Proceedings of the Constituent Assembly, 178.
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Constitutional law of ghana-pt1-ch2
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© F A R Bennion Website: www.francisbennion.com
Doc. No. 1962.001.074 Butterworths, 1962
Any footnotes are shown at the bottom of each page
For full version of abbreviations click ‘Abbreviations’ on FB’s website
CONSTITUTIONAL LAW OF GHANA
Francis Bennion
PART I - THE REPUBLICAN CONSTITUTION
CHAPTER 2
THE CREATION OF THE REPUBLIC
1. Legal Difficulties
Ghana was the first member of the Commonwealth to provide herself with a republican
Constitution without having had the means for doing so expressly indicated by United Kingdom
legislation. Both India and Pakistan, Ghana's precursors as Commonwealth republics, had been
provided with Constituent Assemblies by the Indian Independence Act, 1947. Burma is in a
different category, having become overnight a republic outside the Commonwealth by virtue of a
treaty made between the British Government and the Provisional Government of Burma and of the
provisions of the Burma Independence Act, 1947.* Since no Constituent Assembly had been
provided for by the Ghana Independence Act it became necessary to give careful consideration to
the means whereby a republican Constitution could be enacted. Not even the existence in the first
place of a Constituent Assembly with unchallengeable powers had saved Pakistan from acute
constitutional difficulties in trying to turn herself into a republic and it was felt that every care must
be taken to avoid the possibility of doubt arising as to the validity of Ghana's new Constitution. At
first it was assumed that the Constitution could be enacted by the Parliament of Ghana in the same
way as an ordinary Act. It would no doubt be desirable to avoid embodying the usual enacting
formula, with its reference to the Queen, in the Constitution itself but this could be done by the use
of a device such as the inclusion of the Constitution in a Schedule to the Act bringing it into force.
An examination of the provisions relating to the powers of the Parliament of Ghana however gave
rise to doubts as to whether it would be wise to follow this course.
The powers of the Parliament of Ghana derived from the First Schedule to the Ghana
Independence Act, 1957 and s. 31 of the Ghana (Constitution) Order in Council, 1957. The First
Schedule
1 See Halsbury's Laws (3rd Edn.), Vol. 5, p. 458.
74
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