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National Black Law Journal
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Judicial Review of Legislation in Ghana since Independence
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National Black Law Journal, 5(2)
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Kumado, C.
Publication Date
1977
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JUDICIAL REVIEW OF LEGISLATION IN
GHANA SINCE INDEPENDENCE*
C. Kumado
GENERAL INTRODUCTION
At the outset, we may distinguish between two forms in which judicial
review manifests itself. The first situation occurs in a constitutional scheme in
which the courts have or exert the power to declare an enactment of the legislature
contitutional. Usually its exercise is based on a written, rigid constitution,
changeable, if at all, only through a complex process. The second type is where a
court resorts to strict interpretation of a piece of legislation. That is to say the
court, while professing to interpret the enactment, frustrates the legislature's
intention! We shall be concerned in this article with only the former situation.
Judicial review of legislation is predicated on the acceptance of the primacy
and inviolability of certain legal principles. It involves the creation of a hierarchy
of laws and the conferment of the power to determine and to maintain that
hierarchy. Thus the concept of judicial review stems from a belief in the rule of
law; that is to say, a belief that government should be by law, not of me. ' It is
possible to believe in the rule of law and yet to deny courts the power to determine
the constitutionality of the acts of other branches of government, as is the case in
countries like Great Britain. In modern times, however, most nations which adopt
a written constitution provide for judicial review. In essence, judicial review is an
endeavour to judge positive law in the light of ultimate values.'
The Supreme Court of the United States is noted for its use of judicial review
of legislation as a means of imposing social order; however, the idea of subor-
dinating the actions of various organs of state to "higher principles" did not
originate from there. As Professor Capelletti has pointed out, judicial review in
the United States was the result of "centuries of European thought and colonial
experiences, which had made western man in general willing to admit the
theoretical primacy of certain kinds of law .... "
To say that judicial review antedates the United States is not to minimize the
importance of the American contribution to the development of the theory and
practice of judicial review; for it was in the United States that judicial review as
we know it today first took root effectively. The Constitution of the United States,
or perhaps more accurately, Chief Justice Marshall's interpretation of it in the
case of Marbury v. Madison,' initiated the era of "constitutionalism" with the
* Editor's Note. Many cases are only cited to S. GYANDOH and J. GRIFFITHS. A SOURCEBOOK OF
THE CONSTITUTIONAL LAW OF GHANA (University of Legon 1972). Notwithstanding these are primary
citations. The authors state in their preface to Volume II:
"Our objective has been to assemble all cases of constitutional significance and interest, including
especially those hitherto unpublished." (Emphasis Added)
1. E. MCWHINNEY, JUDICIAL REVIEW 13 (4th ed. 1969).
2. Cappelletti & Adams, JUDICIAL REVIEW OF LEGISLATION: European Antecedents andAdapta-
tions, HARV. REV. 1207 (1966).
3. M. CAPPELLETTI, JUDICIAL REVIEW IN THE CONTEMPORARY WORLD, Chap. II Passim (1971).
4. 5 U. (I Cranch) 137 (1803).
THE BLACK LAW JOURNAL
Judicial review, so the argument continues, has the effect of blunting the
people's vigilance in respect of their rights since the courts then become their
conscience; this in itself contains the seed of destruction for democracy. Demo-
cratic battles are not won in the courts but in the legislatures and arenas of public
opinion. The judiciary is accountable to no one but itself. The fact that now and
again some of its judgments also have the effect of furthering the goals of
democracy does not make it escape the censure that it is essentially undemocratic.
The protagonists of the consistency of judicial review counter by saying that
democracy should not be confused with unchecked majoritarian rule, unlimited
government or legislative sovereignty. Democracy does not require policy deci-
sions to be made by bodies ever sensitive to electorial sentiment. History confirms
that judicial review has popular support and therefore it is democratic. Democracy
does not require that there should be a voting on all major policy issues; neither is
it necessary in a democracy to elect all the officers who exercise crucial authority
in the society. The protagonists further contend that judicial review is inherently
adapted to preserving broad and flexible lines of constitutional growth and
maintaining a pluralist equilibrium in society.
Suffice it to say as Levy 9 rightly notes that the question whether judicial
review is consistent with democracy does not appear to have a one-sided answer.
For while we may admit that judicial review does appear a deviant growth on pure
democracy, it seems perfectly arguable, as Bickel does, that judicial review can
and does achieve "some measure of consonance... a tolerable accommodation
with the theory and practice of democracy."I
0
Judicial review may thus be postulated as the result of an evolutionary
pattern common to much of mankind. It is in a sense a combination of the "forms
of legal justice and the substance of natural law. Desirous of protecting the
permanent will, rather than the temporary whims of the people, many states have
reasserted higher law principles through written constitutions." 11 It is "a syn-
thesis of three separate concepts, namely, the supremacy of certain higher princi-
ples, the need to put even the higher law in written form and the employment of
the judiciary as a tool for enforcing the constitution against ordinary
legislation." 12
####### JUDICIAL REVIEW IN GHANA
Judicial review in Ghana can be traced to the fact that before independence,
as was the case with all British colonial territories, the Privy Council exercised
that power in relation to the overseas Empire. 13 The underlying legal basis for this
power of judicial review exercised by the Privy Council was to be found in the
hierarchy of norms in the British Colonial Empire. In the legal system that existed
in the colonies, English law was supreme. The colonial legislatures were subordi-
nate to the English Parliament. Often the Orders-in-Council setting up these
legislative bodies provided that they could pass laws only if they were reasonable
and not contrary to the sovereign will of the English Parliament expressed in
English enactments.
- ID. AT 42.
- A. BICKEL, THE LEAST DANGEROUS BRANCH; THE SUPREME COURT AT THE BAR OF POLITICS 27-28 (1962).
- Cappelletti T., supra note 3, at 42.
- Id.
- McWhinney, supra note 1.
####### PAGE 210
Colonial laws were thus in theory equated with regulations passed by local
government bodies in England under some enabling law. They could therefore not
stand if they were inconsistent with the laws of England. Thus in Numo v. Koft
14
where a provision of the West African Court of Appeal Ordinance was found
inconsistent with a rule of court which had been made under an Order-in-Council,
the rule of court was held to prevail because the Order-in-Council had provided
that the rules of court when made were to be incorporated into the Order-in-
Council. At the time of independence, therefore, Ghana was not innocent of
judicial review.
REVIEW UNDER THE INDEPENDENCE CONSTITUTION OF 1957
At the time of independence in 1957, Ghana adopted the institutional form of
the British Parliamentary system. The legislative power of the state was vested in
Parliament. 15 The constitution, however, imposed three substantive limitations on
the power of Parliament: (1) No law could "make persons of any racial communi-
ty liable to disabilities to which persons of other such communities are not made
liable." 16 (2) Except for restrictions imposed for the preservation of Public order,
morality or health, no law could "deprive any person of his freedom of con-
science or the right freely to profess, practice or propagate any religion.' 1 7 (3)
The taking of private property was subject to a right of adequate compensation, to
be judicially determined.' 8
The Constitution also placed certain procedural limitations on the exercise of
legislative power, some involving the necessity for approval by regional organs.
These applied to enactments altering regional boundaries and names of regions,
19
affecting the status and functions of chiefs ,20 or modifying the constitutional
provisions of Ghana. 2 ' The various limitations, both substantive and procedural,
were buttressed by the power of judicial review granted to the Supreme Court.
Article 31(5) which confers this power reads:
The Supreme Court shall have original jurisdiction in all proceedings
in which the validity of any law is called in question and if any such
question arises in any lower court, the proceedings shall be stayed and
the issue transferred to the Supreme Court for decision.
Article 31 (5) exhibits a distinction between judicial review in Ghana and the
United States which was to become a permanent feature of judicial review in
Ghana. In the United States, questions of constitutionality are dealt with by both
state and federal courts. Under the 1957 Constitution, however, questions of
constitutionality were made the exclusive preserve of the Supreme Court. Where
the issue arose in any lower court, the proceedings were to be stayed until the
Supreme Court had dealt with the constitutional issue. It may well be that
constitutional issues were considered to be too important to be adjudicated upon
in every court. This aspect of judicial review would appear to group Ghana with
Germany in the practice of review with the important difference that the constitu-
- D. (Land) '48-'51 307, (1951) 2G. & G.
####### 15. Order in Council, Part V (1957), reprinted in S. GYANDOH & J. GRIFFITHS, 1A SOURCEBOOK OF
####### THE CONSTITUTIONAL LAW OF GHANA Part 1, at 132-134 (1972).
- Ghana (Constitution) Order in Council, Part V. § 31(2) (1957).
####### 17. Id. § 31(3).
- Id. § 34.
####### 19. Id. § 33.
####### 20. Id. § 35.
####### 21, Id. § 32.
THE BLACK LAW JOURNAL PAGE 211
the judicial power of the State in the judiciary and Article 42(2) gives the Supreme
Court original jurisdiction to determine questions of constitutionality.
Article 55(4) extended this power of judicial review to Legislative instru-
ments made by the first President under Article 55.
The wording of Article 42(2) appears to have the effect of prohibiting the
Supreme Court from making pronouncements on the constitutionality of enact-
ments except where such a decision is necessary for the disposal of a concrete
dispute. For as has been pointed out by Rubin and Murray, the words "where the
question arises" reasonably interpreted must mean that the Supreme Court can
give neither advisory nor speculative opinions.
25
The same authors also suggest that the wording of Article 42(2) limits the
Supreme Court's power of judicial review to only the enactments passed by the
Republican Parliament. 26 They argue that the power is to be exercised where a
question arises "whether an enactment was made in excess of the powers
conferred on Parliament by or under the Constitution." So that in their opinion
the Supreme Court's power of judicial review under the 1960 Constitution did not
extend to enactments that were in existence before the coming into force of the
Constitution. The problem of the scope of judicial review under the 1960 Con-
stitution will be dealt with fully when we come to discuss the judicial attitude to
its exercise. It need only be pointed out here that the words of Article 42(2)need
not be given so restricted a meaning; particularly since the Constitution was
supreme to any other law.
It is interesting to note at this point that even though the Article conferring
the judicial power of the State on the judiciary was entrenched, the one granting
review was not. Whether or not this would have affected the power of the courts
to pronounce on questions of constitutionality was, however, never determined
before the Constitution as a whole was suspended in 1966 after the military
take-over. It would, of course, have been interesting to see whether the Supreme
Court of Ghana would have adopted the Marbury v. Madison reasoning if the
occasion had arisen.
What was the scope of the power of judicial review provided in the 1960
Constitution? This question and many others were considered by the Supreme
Court in the controversial case of Re Akoto and Seven Others The appellants
####### court, the hearing shall be adjourned and the question referred to the Supreme Court for
####### decision.
- Id. § 55. Article 55 reads:
####### (1) Notwithstanding anything in Article Twenty of the Constitution, the person ap-
pointed as First President of Ghana shall have, during his initial period of office, the powers conferred on him by this Article.
####### (2) The First President, may whenever he considers it to be in the national interest to do
so, give directions by legislative instrument. (3) An instrument made under this Article may alter (whether expressly or by implica-
####### tion) any enactment other than the Constitution.
####### (4) Section (2) of Article Forty-two of the Constitution shall apply in relation to the
####### powers conferred by this Article as it applies in relation to the powers conferred on
####### Parliament.
(5) For the purposes of this Article the First President's initial period of office shall be
####### taken to continue until some other person assumes office as President.
####### (6) The power to repeal or alter this Article during the First President's initial period of
office is reserved to the people. 25. L. RUBIN AND P. MURRAY, THE CONSTITUTION AND GOVERNMENT OF GHANA 197 (2d ed. 1964). F. BENNION, THE CONSTITUTIONAL LAW OF GHANA 172 (1962).
####### 26. E. BENNION, supra note 25, at 172.
- (1961) G.L. 523 (1961) 2 G. & G. 183. THE BLACK LAW JOURNAL PAGE 213
had appealed against the refusal of Sarkodee-Addo J. (as he then was) to grant
them habeas corpus. The appeal was fought on many grounds. For the present
discussion, however, the most relevant contention of the appellants read thus:
The Preventive Detention Act, 1958, by virtue of which the appellants
were detained, is in excess of the powers conferred on Parliament by the
Constitution of the Republic of Ghana with respect to Article 13(1)18 of
the Constitution, or is contrary to the solemn declaration of fundamental
principles made by the President on assumption of office. 29
The resolution of the substantial issue of constitutionality raised by the appeal
necessitated that the court determine the effect of Article 13(1) and the scope of
judicial review under the 1960 Constitution.
For the appellants, it was argued that it is of the essence of government under
a written constitution that the various organs of state are limited in their powers by
the constitutional document. 30 The Parliament established by the 1960 Constitu-
tion was therefore not sovereign in the sense in which that word is employed to
characterize the supremacy of the British Parliament. Parliament in the exercise of
the legislative power granted it under the Constitution could not pass any laws that
contravened the Constitution either expressly or impliedly. Therefore, in the
exercise of its legislative powers, Parliament was subject to the declaration of
fundamental principles embodied in Article 13(1), as much as it was limited by
other provisions of the Constitution. The P.D., however, authorized the Presi-
dent, if he was satisfied, to order the detention of a person without trial. This, in
the contention of counsel for the appellants, was an exercise of judicial power by
the Legislature. And yet Article 41(2) has vested the judicial power of the State in
the Courts. This purported exercise of judicial power was therefore invalid and
the Courts must so hold.
Besides, so counsel for the appellants contended, the P.D. provided for
discrimination against people for their political views; it limited freedom of
speech, movement and association-all important freedoms which the President in
####### 28. Article 13(1) provided:
####### 13(1) Immediately after his assumption of office the President shall make the following
####### solemn declaration before the people-
####### On accepting the call of the people to the high office of President of Ghana I ... solemnly
####### declare my adherence to the following fundamental principles-
####### That the powers of Government spring from the will of the people and should be
####### exercised in accordance therewith.
####### That freedom and justice should be honoured and maintained.
####### That the union of Africa should be striven for by every lawful means and, when
####### attained, should be faithfully preserved.
####### That the Independence of Ghana should not be surrendered or diminished on any
####### grounds other than the furtherance of African unity.
####### That no person should suffer discrimination on grounds of sex, race, tribe, religion or
####### political belief.
####### That Chieftaincy in Ghana should be guaranteed and preserved.
####### That every citizen of Ghana should receive his fair share of the produce yielded by the
####### development of the country.
####### That subject to much restrictions as may be necessary for preserving public order,
####### morality or health, no person should be deprived of freedom of religion or speech, of the
####### right to move and assemble without hindrance or of the right of access to courts of law.
####### That no person should be deprived of his property save where the public interest so
####### requires and the law so provides.
####### 29. 2G. & G. 183 (Submissions of Counsel for the appellants, Dr. J. Danquah).
####### 30. It is obviously a mere generalization to say that limitability is of the essence of the powers of
####### various organs under written government. It is true that most states that have written constitutions
####### provide for limitations on the authority of the various State organs in the written document. It is
####### possible for a State in a written Constitution to give unlimited power to one organ or to some organs of
####### the State.
PAGE 214 THE BLA CK LA W JO URNA L
THE BLACK LAW JOURNAL
It was a major contention of the Attorney-General, therefore, that outside the
limitations imposed on Parliament by Article 20, it was not limited in any other
way by any other provision of the Constitution. The P.D., in his opinion, was
not only valid in terms of the Constitution but was necessary for the maintenance
of constitutionalism in a country, like Ghana, which was changing from a state of
dependence to independence.
The Court thus rejected the broad scope argued for brilliantly by Dr.
Danquah. Judicial review under the 1960 Constitution would therefore appear to
have been limited by the Supreme Court to cases where a violation of Article 20
of the Constitution can be proved. It is submitted that it was not necessary to
restrict the scope of judicial review in order to come to the specific conclusion it
reached in the Akoto case. For it seems arguable that Article 13(1) did not give
rise to any justiciable rights. Even if some of the provisions concern fundamental
human rights, the only way these can be enforced is by a selective process of a
sort. But the Constitution gives no guidance as to how this selective process is to
work.
As was argued by the Attorney-General some of the provisions of Article
13(1) give rise to much difficulty if Article 13(1) were held to be justifiable. For
example, how was the provision that every citizen be entitled to a fair share of the
national produce to be enforced? It is submitted, therefore, that the actual holding
that Article 13(1) did not give rise to a legally enforceable right is defensible
though the reasoning of the court did not sufficiently analyze the constitutional
issues raised.
Of course the absence of any guidelines in the constitutional document as to
how the rights contained in Article 13(1) were to be enforced is not conclusive as
to whether they could have been enforced by a selective process. Any one
familiar with the work of the U. Supreme Court, particularly in the area of the
Bill of Rights of the U. Constitution, would probably argue that the absence of
any guideline from the constitutional document did not, per se, preclude the Court
from fashioning out its own doctrinal basis for the enforcement of any of the
declarations embodied in Article 13(1).
One observation worth commenting on is the Court's argument that the word
"should" was used in the declaration where, if intended to be legally enforce-
able, one would have expected the word "shall". This argument is surprising in
view of the provisions of section 27 and 28 of the Interpretation Act, 1960
(C.A) which was in force at the time of the Akoto judgment. 34 Assuming that
the Interpretation Act is not considered unconstitutional, since it appears to be
exercising the judicial power of the State by providing presumably mandatory
interpretations of various words, the two sections seem to make the distinction
between the effect of "shall" and "should" no longer necessary in Ghana. This
argument was, of course, not put to the Court. Neither did it advert its attention to
it. Given the narrow scope the Court was prepared to give judicial review, it is not
inconceivable that, if made, such an argument would have been rejected.
####### 34. Section 27 Provides:
####### In an enactment made after the passing of this act, "shall" shall be construed as
imperative and "may" as permissive and empowering; Section 28 provides:
####### Where a word is defined in an enactment other parts of speech and gramatical varia-
####### tions of that word must have corresponding meanings.
####### See also Memoranda to the Acts of Ghana. Vol. 1.
####### PAGE 216
THE BLACK LAW JOURNAL
One peculiarity about the language in which the constitutional grant of the
power of judicial review in the 1960 Constitution was couched may be pointed
out. Article 42(2) talks of whether an enactment was made in excess of the
powers conferred on Parliament by order under the Constitution. . . . This
would appear to suggest that judicial review under the 1960 Constitution was
limited to the application of the ultra vires doctrine. Did the Supreme Court have
jurisdiction to determine the issue of conflict between a constitutional provision
and an Act of Parliament where Parliament was acting within its authority?
Article 42(2) may be contrasted with Article 31(5) of the 1957 Constitution.
Article 31(5) grants the power of judicial review to the Supreme Court "in all
proceedings in which the validity of any law is called in question. . . ... If one is
to give any significance to the difference in the language employed in the two
provisions, it seems that the conclusion is that the 1957 Constitution contained a
broader grant of review power than the 1960 Constitution. In terms of judicial
attitude to the power of review, our discussion of the few cases concerned so far
shows clearly that, under the 1957 Constitution, judicial review was given a broad
view though it was shortlived. 35 Under the 1960 Constitution the courts them-
selves narrowed severely the scope of their power of judicial review. The Akoto
opinion assigned a kind of mechanistic role to the courts in their exercise of
review power.
THE 1969 SECOND REPUBLICAN CONSTITUTION OF GHANA
The last constitutional document to be considered in this discussion is the
1969 Constitution. It was promulgated upon the return to civilian rule in Ghana
after a three-year spell (February 24, 1966-August 1969) of military rule. If that
document as a whole can be considered as a reaction against the 1960 Constitu-
tion, it is submitted that the provisions regarding judicial review evince an even
greater degree of over-reaction against the Supreme Court's decision in Re
Akoto.
After a survey of the various attempts at planting judicial review in Ghana,
the Constitutional Commission which drafted the 1969 Constitution could not
help concluding that the picture it discovered was blurred and dismal. The
Commission therefore proposed:
That the Judiciary should keep watch and ward over the Constitution. As
the guardian of the Constitution the Supreme Court, the highest Court in
Ghana, will have the power to adjudicate on the constitutionality or
legality of all laws passed in Parliament.
36
It was not surprising therefore that the 1969 Constitution contained the most
impressive and elaborate provisions for the exercise of judicial review that has
been included in any of the Ghanian constitutions. The over-reaction against the
Akoto decision was understandable. The constitution-makers gave the Judiciary
broad review powers under the 1969 Constitution as part of the weapons designed
to prevent the emergence of a one-party state in Ghana.
The decree which set up the Constitutional Commission had emphasized that
the Commission's proposals should incorporate the doctrine of separation of
####### 35. In 1958, the Constitution (Repeal of Restrictions) Act, 1958 (Act No. 38 of 1958) was passed.
####### The effect of this Act was to make any part of the Constitution amendable by an Ordinary Act of
####### Parliament. Thus no Acts of Parliament could be invalidated on grounds of unconstitutionality.
####### 36. The Proposals of the Constitutional Commission for a Constitution for Ghana, Para. 324
(1968). PAGE 217
It provided a tripartite division of the provisions of the Constitution: there
were the entrenched provisions which could not be amended at all by Parliament.
Included in this class are Article 169(3)(4), Chapter One, which contained the
Supremacy Clause and provisions for the enforcement and defences of the
Constitution; Article 127 prohibiting taxation otherwise than under the authority
of an Act of Parliament; Article 149 prohibiting the establishment of an armed
force except under the authority of an Act of Parliament; and Article 153
guaranteeing the institution of Chieftancy. Then there were a second set of
provisions which could only be amended by being enlarged. These included
Chapter Four which dealt with the Liberty of the individual (the human rights
provisions); Chapter Five which dealt with representation of the people; Article
29 establishing the right of every citizen of sound mind and 21 years of age to be
registered as a voter and to vote, Article 33 providing for elections and referenda
to be by secret ballot and Article 35 prohibiting the formation of political parties
on sectional basis. Finally came the provisions which could be amended only by a
procedure so tortuous as to ensure that only amendments which were absolutely
necessary would be embarked upon. Significant in this procedure, apart from the
requirement of Gazette publication for the proposal and the bill for the amend-
ment, was the requirement that the amendment be passed by two Parliaments.
That is to say, the Constitution envisaged a mandatory dissolution of the first
Parliament to pass the amendment and then the amendment had to be approved by
the succeeding National Assembly in order for it to become effective.
The Supreme Court was given exclusive jurisdiction to determine questions
of constitutionality under the 1969 Constitution. That, however, seems to have
been the only resemblance that the regime of review under the 1969 Constitution
had with earlier Ghanian Constitutions.
A few other observations are worth making on the provisions for judicial
review under the 1969 Constitution. Article 102(1) which ends in the words
"... no organ or agency of the executive shall be given any final judicial
power" presents a perplexing query. Did it imply that "final judicial power"
could have been validly vested in an organ or agency of Parliament? Fortunately
for the courts (but perhaps unfortunately for the constitutional lawyer) the occa-
sion for the resolution of this difficult problem never arose before the Constitution
was overturned by an armed insurrection.
The protection of human rights was entrusted in the hands of the High Court
with a right of appeal to the Court of Appeal and then to the Supreme Court under
Article 28. This would suggest that as far as the enforcement of the human rights'
provisions was concerned the High Court had power to declare unconstitutional
any act that violated the provisions of Articles 12-27 inclusive. This interpretation
is further strengthened by the wording of Article 106(1) which, as we have noted
above, gives the Supreme Court exclusive and original jurisdiction in all matters
of constitutionality "save as otherwise provided in Article 28 of this Constitu-
tion." It is respectfully submitted that the only reasonable interpretation that
takes account of the wording of Articles 28 and 106(1) is that the High Court also
had powers, albeit limited to Articles 12-27, to annul enactments.
The interpretation and enforcement of the Constitution, as the wording of
Article 106 suggests, can only be embarked upon in a concrete case. This means
of course, that the Supreme Court could not, suo motu, exercise this function.
The wording of Article 2 also leaves one in no doubt that the declaratory relief can
THE BLACK LAW JOURNAL PAGE 219
only be sought in a concrete case. The Constitutional Commission had recom-
mended that the Supreme Court be given authority to render advisory opinions on
the constitutionality of statutes prior to final enactment. But this was rejected by
the Constituent Assembly which promulgated the Constitution.
The impact of these provisions was too plain to be lost on any one. The
power of the judiciary to adjudicate on questions of constitutionality was left in no
doubt. Parties involved in lawsuits were offered the opportunity to raise constitu-
tional issues and the remedies were made clear. With such detailed and explicit
constitutional provisions, problems were bound to arise. In the face of such clear
referral procedure the Supreme Court could hardly avoid confronting questions of
constitutionality. It was thus forced to grapple with such problems long before it
had developed any avoidance techniques along the lines of the U. Courts and
the German and Italian Courts.
Not unexpectedly, counsel felt free to raise issues of constitutional validity.
The Supreme Court was suddenly being flooded with claims by counsel in various
suits that some constitutional provision had to be interpreted. One case, Sallah v.
Attorney-General 9 raised more furor than any other constitutional law decision
in Ghana since independence. Mr. E. Sallah who was a Manager of the Ghana
National Trading Corporation(a State establishment) was dismissed from his post.
His letter of dismissal stated that he had been dismissed in accordance with
Section 9(l) 4 of the First Schedule to the 1969 Constitution (Part IV). Mr. Sallah
brought this action for
a declaration that on a true and proper interpretation of the provisions of
section 9(1) of the First Schedule to the Constitution (Part IV) the
Government of Ghana was not entitled to terminate (his) appointment as
a Manager in the Ghana National Trading Corporation.
The question to be determined was whether the plaintiff, Mr. Sallah, held an
office "established" by or under the authority of the National Liberation Council
or in pursuance of a Decree of the National Liberation Council. The plaintiff
contended vigorously that the office he held fell in none of the categories
contemplated by Section 9(1) of the Transitional Provisions. The State's argu-
ment was based entirely on Kelsen's Pure Theory of Law. It was argued that the
coup d'etat of February 24, 1966 had destroyed the legal order in existence before
then, and with it the existing law. A new legal order was established from which
all law derived its validity. Consequently, the plaintiff was caught squarely by
section 9(1) of the Transitional Provisions.
####### 39. (1970) 2G. & G 493. The Prime Minister Dr. K. Busia, in a radio and television broadcast,
####### shortly after the Court had announced its decision, severely criticized the decision. The total number
####### of dismissals purported to have been done under Section 9(1) of the Transitional Provisions was 568.
####### Apart from Mr. Sallah none of the other persons affected brought an action.
####### 40. Section 9() of the Transitional Provisions contained in Schedule I provides as follows:
####### 9(l) Subject to the provisions of this section, and save as otherwise provided in this
####### Constitution, every person who immediately before the coming into force of this Constitu-
####### tion held or was acting in any office established,
####### (a) by or in pursuance of the Proclamation for the Constitution of a National Liberation
####### Council for the administration of Ghana and for other matters connected therewith
####### dated the twenty-sixth day of February, 1966, or
####### (b) in pursuance of a Decree of the National Liberation Council, or
####### (c) by or under the authority of that Council, shall, as far as is consistent with the
####### provisions of this Constitution, be deemed to have been appointed as from coming into
####### force of this Constitution to hold or to act in the equivalent office under this Constitu-
####### tion for a period of six months from the date of such commencement, unless before or
####### on the expiration of that date, any such person shall have been appointed by the
####### appropriate appointing authority to hold or to act in that office or some other office.
PAGE 220 THE BLACK LAW JOURNAL
Full Bench had to determine was the validity of NLCD 400. The majority of the
Court (Azu Crabbe C. dissenting) held, per Apaloo J., that NLCD 400 did
not offend Articles 12 and 18 of the Constitution. In the opinion of the majority,
NLCD 400 was promulgated to implement the findings of Commissions and to
provide a convenient machinery for getting in assets and moneys found to have
been unlawfully acquired. It was not the enactment that divested plaintiff-
appellant of his property. Our immediate concern however is not with the actual
decision but with the reasoning by which it was arrived at.
Significantly, and in line with the approach to constitutional litigation which
we have noticed in the earlier cases, the Full Bench in this case considered the
litigation as raising purely a problem of statutory interpretation. The majority
opinion described the Court's constitutional role as being "interpretory." But it is
at least heartening to notice that here the Court showed some awareness of other
competing constitutional and social policy interests involved and the role of these
interests in constitutional litigation. The majority opinion made it unmistakably
clear that where the legislature takes steps to establish probity in public life, and
the Constitution also contains provisions designed to achieve the same end, the
function of the judiciary must be to lend a helping hand by putting liberal
construction on the enactments to achieve this end.'
The plaintiff-appellant had also argued that the main features of NLCD 400
usurped "judicial power" vested by the Constitution in the judiciary, and there-
fore the Decree should be nullified. That argument did not impress the majority.
They found nothing "judicial" in the declared aim and effect of the legislation.
As far as the majority of the Court were concerned, the unlawfully acquired assets
had become vested in the State before the promulgation of NLCD 400. NLCD
400 was merely designed to bring in what had already been effectively vested in
the State.
It would be recalled that in the discussion at the earlier part of this section, it
was suggested that the High Court had power of a limited nature under Article 28
of the Constitution to review enactments found to be inconsistent with Articles
12-27 inclusive. The opinion of the majority lends some support for this view-
point. The majority, however, seemed to have been of the view that questions of
interpretation would have had to be referred to the Supreme Court even where the
High Court was acting under Article 28. It is difficult to see why this should be
so. Article 28 is, in our opinion wide enough in terms to clothe the High Court
with jurisdiction to interpret the Constitution. It is therefore submitted that where
the High Court is adjudicating a case in which a party claimed that Articles 12-
were being violated in relation to him, the High Court had power under Article 28
to interpret and nullify legislation if that was necessary for the resolution of the
litigation.
The Benneh case, however, further confirms the impression which we have
gathered from our reading of earlier cases decided under the Constitution. Name-
ly, that our judges considered their role, where called upon to exercise their power
of judicial review, as merely involving delving into the intricacies of statutory
interpretation. As we have noted, however, there was a welcome change in the
beat of the song. The Courts appeared prepared to give some role to other broad
policy considerations.
- Id. at 75-77, 89, 95-96. PAGE 222 THE BLACK LA W JOURNAL
THL DLACL L~i IV JOURNAL
THE HIGH COURT AND REVIEW UNDER THE 1969 CONSTITUTION
We may now consider what I characterize as a peculiar practice of some of
the High Court judges under the 1969 Constitution. It would be recalled that the
constitutional provisions on judicial review, in particular, Article 106(2), required
lower Courts "to stay proceedings and refer the question of law involved to the
Supreme Court for determination where a question of constitutionality arose
before the lower Court." In a number of cases, however, in the face of the clear
and mandatory provisions, the High Court refused to refer the issues to the
Supreme Court and proceeded to nullify provisions in certain enactments on the
grounds that such provisions violated the Constitution. A few examples will
express our concern in this respect.
The first of such cases was the Republic v. Boateng, Ex parte Adu-Gyamfi
H In that case a preliminary objection was taken to the jurisdiction of the High
Court. The argument was that section 52 of the Courts Act, 1971 (Act 372) 46 had
ousted the jurisdiction of the High Court in Chieftaincy matters. It was further
argued that this view was fortified by Articles 154 and 155 of the Constitution.
47
The cumulative effect of these provisions, so it was contended, was to divest the
High Court of jurisdiction in Chieftaincy matters. After due consideration of
Articles 102, 113 and 114 of the Constitution, the learned judge held that section
52 of the Courts Act, 1971 (Act 372) could not oust the jurisdiction of the High
Court or the Court of Appeal. The learned judge therefore held the purported
ouster inoperative.
####### 45. (1972) 1 G.L. 317.
####### 46. Section 52 provides: Notwithstanding anything to the contrary in this Act or any other
####### enactment of the Court of Appeal, the High Court, a Circuit Court and a District Court shall not have
####### jurisdiction to entertain either at first instance or on appeal any cause or matter affecting Chieftancy.
####### 47. Article 154 of the Constitution reads:
####### 154(1) There shall be established a National House of Chiefs.
####### (2) The House of Chiefs of each Region shall elect as members of the National House
####### of Chiefs five Chiefs from the Region.
####### (3) The National House of Chiefs shall, subject to the provisions of clause (3) of article
####### 105 of this Constitution
####### (a) have appellate jurisdiction in any matter relating to Chieftaincy which has been
####### determined by the House of Chiefs in a Region from which appellate jurisdiction
####### there shall be on appeal, with the leave of the Supreme Court or of the National
####### House of Chiefs to the Supreme Court; and
####### (b) advise any person or authority charged with any responsibility under this Con-
####### stitution or any other law for any matter relating to or affecting Chieftaincy.
####### (4) Subject to the provisions of clause (2) of article 126 of this Constitution, the
####### National House of Chiefs
####### (a) shall undertake the progressive study, interpretation and codification of custom-
####### ary law with a view to evolving, in appropriate cases, a unified system of rules of
####### customary law; and
####### (b) shall perform such other functions, not being inconsistent with any function
####### performable by the House of Chiefs or a Region, as Parliament may, by or under an
####### Act of Parliament, confer on it or otherwise refer to it.
####### Article 155:
####### (1) There shall be established in and for each Region a House of Chiefs which shall
####### (a) have original jurisdiction in all matters- relating to a paramount Stool or the
####### occupant of a paramount Stool;
####### (b) hear and determine, subject to the provisions of clause (3) of article 105 of this
####### Constitution, appeals from the highest Traditional Councils within the area of author-
####### ity of the Traditional Authority within which they are established, in respect of the
####### nomination, election, installation, or deposition of any person as a chief;
####### (c) perform in and for the Region such other authority of an Act of Parliament.
####### (2) Subject to the provisions of this Constituion, the House of Chiefs of a Region
####### existing immediately before the coming into force of this Constitution shall be deemed to
####### have been established from the coming into force of this Constitution as the House of Chiefs
####### of the Region.
Court under the "equal protection clause," the "due process" clause and the way
Marshall turned the "Supremacy Clause" into the bastion of judicial review in
the United States have won the respect of all knowledgeable constitutional
lawyers the world over. Our Supreme Court, however, allowed the appearance of
the word "interpretation" in Article 106 to blindfold it into narrowing the scope
of perhaps one of the most commendable attempts so far made in the world to
enshrine the power of judicial review in a written constitutional document.
Clearly, then, the courts had not grasped the enormity and complexity of the
powers granted the judiciary under the 1969 Constitution. In a sense the narrow
view the Supreme Court took of its review power was understandable. The
positivist judicial attitude to constitutional adjudication, the "strict statutory
construction" approach to the constitutional instrument-the search for legisla-
tive "intent" in the words of the Constitution and the impression created that the
words themselves have a plain and absolute meaning that can be found with the
aid of a dictionary-all these tendencies have become characteristic of judges in
the Commonwealth. By their common law training they equate adjudication in the
constitutional law field with adjudication in the normal private law courts decid-
ing private litigation between private parties.
5 1
####### REVIEW UNDER THE MILITARY REGIMES OF GHANA
The last aspect of post-independence judicial review of legislation to be
considered in our discussion is review of legislation under our military govern-
ments. Twice in our constitutional experience, we have had a situation where the
Armed Forces seized the reigns of government, dismissed the executive and
suspended the Constitution 2 One characteristic of the two military regimes we
have had in Ghana has been that the Constitution was not abrogated but "sus-
pended." The military authorities then enacted a Proclamation in which they
generally sought to keep the powers of the judiciary under the suspended Con-
stitution intact subject to the Proclamation and such other enactments as the
military government decreed from time to time.
53
A convenient starting point would be a dictum of Edusei J. in the Republic v.
Chairman, Commission of Enquiry (State Fishing Corporation, Accra); Ex parte
Bannerman 4 The learned High Court judge made the following definitive
statement in that case:
I wish to make it abundantly clear that the National Liberation Council
may occupy a dual capacity in that it has powers to enact decrees which
have the force of an Act of Parliament, and it also occupies an executive
position such as the deposed President occupied.... I have taken
pains to bring out clearly the dual capacity of the National Liberation
Council because if the Council exercises its legislative function by pro-
mulgating decrees I am of the view that the ultra vires doctrine cannot be
used to question the validity of a decree .... 55
- E. MCWHINNEY, supra note 1 at 22-30.
####### 52. These occurred in February 1966 when the Military remained in power until August 1969 and
####### again in January 1972 when the Armed Forces again toppled the civilian government which had
####### succeeded the military government that reigned between 1966 and 1969. Ghana is presently under
military rule.
####### 53. The Proclamation currently in force is the National Redemption Council (Establishment)
Proclamation, 1972. 54. (1967) C. 124, (1967) 2 G. & G. 293. 55. (1967) C. 124, 196, (1967) 2 G. & G. 293, 295, supra at 196; 295. THE BLACK LAW JO URNA L PAGE 225
THE BLACK LAW JOURNAL
The learned judge thus posited his view that the decrees of the National
Liberation Council (the First Ghanaian military government) could not be con-
stitutionally questioned in the sense in which an enactment of Parliament under a
written Constitution would be subject to review. He would ascribe to the National
Liberation Council sovereign legislative powers. 5 6 In Republic v. Director of
Prisons, ex parte Salifa,57 however, the question which had to be decided was
whether a document which did not comply with the requirements of sub-
paragraphs 6, 7, 9, 10 and 11 of paragraph 3 of the N.L. Proclamation as
amended by paragraph 16(a) of the N. C. (Consequential and Transitory Provi-
sion) Decree, 1966 (NLCD 73), was a decree. 5 1 It was contended on behalf of
Salifa, who had brought an application for habeas corpus, that the document
produced before the Court could not be a valid decree because it bore no number
and had not been published in the Gazette. The court was therefore invited to
declare his detention unlawful, as not having been authorized by any valid
enactment.
In granting the application for habeas corpus, the learned judge made a
number of observations which must be of considerable interest to the constitution-
al lawyer. He ruled that a document in violation of the provisions of the Procla-
mation could not be a valid decree. A document that was not promulgated or
published (in the sense of being made public in the Gazette) would not be a valid
decree. The learned State Attorney had argued that sub-paragraph 4 of paragraph
3 gave the National Liberation Council unlimited power. 59 Relying on the Pream-
ble to the Proclamation,60however, the learned judge concluded that the National
Liberation Council had come into power to eradicate "illimitability of power in
Ghana". It could not therefore assume a power it was and must be deemed
committed to eradicate.
####### 56. For a similar judicial opinion of the N.L.'s legislative powers, see Awoonor-Williams v.
####### Gbedemah, (1960) 2 G. & G. 436, 444.
####### 57. (1968) 2 G. & G. 374.
####### 58. Those subparagraphs provide as follows:
####### (6) Every Decree made by the Council shall, as soon as practicable after it is made, be
####### published in the Gazette.
####### (7) A Decree made by the Council shall, unless otherwise provided in that Decree,
####### come into force on the date of the publication of that Decree in the Gazette.
####### (9) Decrees made by the Council shall be numbered consecutively from the com-
####### mencement of this Proclamation in accordance with the order in which they are published
####### and the numbering shall not begin afresh at the commencement of a calendar year or any
####### other period.
####### (10) A Decree made by the Council shall bear at the head a short title and the citation of
####### the short title of a Decree or the number alloted to it on publication shall be sufficient to
####### identify the Decree.
####### (11) Any document purporting to have been printed or published by the Government
####### Printer and purporting to be a Decree of the Council (including this Proclamation) duly made
####### in accordance with the provisions of this Proclamation shall be prima facie evidence of the
####### due making thereof and of its terms and number.
####### 59. The relevant provisions reads:
####### 3(4) Any decree made by the National Liberation Council may be amended or revoked
####### or suspended by another decree of the Council.
####### 60. The Preamble to the Proclamation provides:
####### WHEREAS... the Armed Forces of Ghana assumed the Government of the Republic of
####### Ghana in the interest of the people of Ghana;
####### AND WHEREAS it is expedient that due provision should be made by law for the proper
####### administration of the country and for the maintenance of law and order;
####### NOW THEREFORE KNOW YE ALL MEN that by virtue of the said assumption of the
####### Government of Ghana this Proclamation is made with effect from the 13th day of January
####### 1972.
PAGE 226
Qt1df0c35b - Summary Ghana Legal System
Course: Ghana Legal System (FLAW 103)
University: University of Ghana
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