i THE ROLE OF THE SUPREME COURT IN THE DEVELOPMENT OF CONSTITUTIONAL LAW IN GHANA by SETH YEBOA BIMPONG-BUTA
THE ROLE OF THE SUPREME COURT IN THE DEVELOPMENT OF CONSTITUTIONAL LAW IN GHANA
Nov 15, 2022
Welcome message from author
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Microsoft Word - BButa Final Thesis _No 6_.docIN THE DEVELOPMENT OF CONSTITUTIONAL
LAW IN GHANA
IN THE DEVELOPMENT OF CONSTITUTIONAL LAW IN GHANA
by
SETH YEBOA BIMPONG-BUTA
Submitted in accordance with the requirements for the degree of DOCTOR OF LAW – LLD
at the UNIVERSITY OF SOUTH AFRICA
PROMOTER PROFESSOR B P WANDA
1 February 2005
iii
ABSTRACT The Theme running through this Dissertation is intended to prove that the Supreme Court has a role to play in the promotion, enforcement and sustenance of a proper democratic system of government, good governance and fundamental human rights and freedoms in Ghana. The Study would therefore address the role of the Supreme Court in the development of Constitutional Law in Ghana, with particular emphasis on the court’s contribution to the underlying concepts of the Fourth Republican Constitution of 1992; the guiding principles of constitutional interpretation and the vexed issue of whether the court should adopt a mechanical and literal approach to the interpretation of the Constitution or adopt a liberal, beneficent and purposive approach. The Supreme Court has asserted in the locus classicus decision: Tuffuor v Attorney-General [1980] GLR 637 that the 1979 Constitution as the supreme law, must be construed as a living political document capable of growth. Is there any evidence now to support that claim? The study shall also investigate the question of the power of the Supreme Court to review legislative and executive action. We shall also examine the role of the Supreme Court in the interpretation and enforcement of the Constitution and Fundamental Human Rights and Freedoms in relation to the rights and obligations of the individual and the State with the view to achieving good governance. The 1992 Constitution itself is founded on the premise that there are limitations to the enjoyment of fundamental human rights and freedoms. What is the extent of such limitations as determined by the Supreme Court? What has been the Supreme Court’s contribution to the sustenance of political stability and democratic governance and, especially, in matters relating to coup d’etats and to enforcement of the Constitution itself as distinct from the enforcement of fundamental human rights and freedoms? Has the Supreme Court power to enforce the Constitution and the existing law where there is proven case of injustice and illegality? Has the Supreme Court power to enforce Directive Principles of State Policy as formulated in chapter 6 of the 1992 Ghana Constitution?
TITLE OF THE THESIS THE ROLE OF THE SUPREME COURT IN THE DEVELOPMENT
OF CONSTITUTIONAL LAW IN GHANA Key terms: Meaning of Constitutional Law; importance and meaning of democracy and good governance; Underlying concepts of the Fourth Republican Constitution of 1992; Supreme Court and guiding principles of constitutional interpretation; Supreme Court and judicial review of legislative and executive action; Supreme Court and interpretation or enforcement of fundamental human rights and freedoms; limitations on enjoyment of fundamental human rights and freedoms; jurisdiction of the Supreme Court in interpretation or enforcement of the Constitution; principles pertaining to the enforcement of the Constitution.
iv
TABLE OF C O N T E N T S
Page
THEME OF THE DISSERTATION 1
(i) Statement of the central theme 1
(ii) Meaning of constitutional law 6
(iii) Importance and meaning of democracy and
good governance .. .. 10
(vi) Methodology, work division and scope of the dissertation .. 19
(vii) Conclusion .. .. 20
AND THE LEGAL SYSTEM IN GHANA .. 25
PART A: CONSTITUTIONAL EVOLUTION IN GHANA .. 25
v
(i) Sources of Law .. .. 33
(ii) The judicial system in Ghana (the past and present) .. 41
(iii) Independence of the judiciary .. .. 48
(iv) Composition of the Supreme Court .. .. 56
(v) Qualifications for appointment as Chief Justice or Justice of the
Supreme Court .. .. 65
(a) appellate jurisdiction .. .. 68
(b) review jurisdiction .. .. 69
Conclusion .. .. 72
THE CONSTITUTION, 1992 73
(iii) Doctrine of separation of powers .. .. 101
(iv) Doctrine of non-justiciable political question .. 109
(v) Doctrine of mootness .. .. 136
(vi) Conclusion .. .. 147
OF THE CONSTITUTION 149
(i) general principles of constitutional interpretation 155
(ii) need for benevolent, broad, liberal and purposive
construction of a national document 159
(iii) benevolent construction on provisions on the right to vote 166
vi
(iv) national constitution to be viewed as a document
sui generis to be construed not necessarily according to ordinary rules
and presumptions of statutory interpretation .. 169
(v) National constitution to be construed as political document
capable of growth .. 184
(vi) Role of Directive Principles of State Policy as tool for
constitutional interpretation 187
(vii) Role of the spirit of the Constitution as a tool
for interpretation 189
Conclusion .. .. 202
CHAPTER V: THE SUPREME COURT AND THE POWER OF JUDICIAL REVIEW
OF LEGISLATIVE ACTION 206
(i) general introduction 206
(a) introduction .. .. 208
(b) examination of ambit of judicial review of legislative action 210
(iii) Ouster clauses and judicial review of legislative action 227
(a) introduction .. .. 227
(b) the indemnity clause in section 34(3) and 36(2) of the
transitional provisions .. .. 228
(iv) Legality of coup d’etats and judicial review of
legislative action 244
(a) introduction .. .. 244
(b) examination of the issue of the legality of a coup d’etat 244
(v) Constitutionality of the Fast Track High Court 258
(a) introduction .. .. 258
(b) creation and purpose of the Fast Track High Court 259
(c) the facts and central issue for determination .. 261
(d) determination of the central issue .. 263
vii
(e) application for a review of the majority decision 274
(f) crucial issue for determination in review application 278
(g) rationalization of the ordinary and review bench
decisions in the Tsatsu Tsikata case .. 284
(vi) Conclusion 286
CHAPTER VI: THE SUPREME COURT AND THE POWER OF JUDICIAL
REVIEW OF EXECUTIVE ACTION 287
(i) Introduction 287
relating to compulsory retirement of public officers 288
(a) introduction .. .. 288
(c) can the decision in Yovuyibor case .. 292
(d) can the decision in Yovuyibor case be supported 295
(iii) Challenge to executive action relating to local
government administration 305
(a) introduction .. .. 305
administration .. .. 306
(iv) Can the President be sued personally in the exercise
of executive functions? 309
amenable to court proceedings .. 310
(c) reasoning for the majority and minority opinions
in NPP v President Rawlings .. .. 311
(d) rationalization of the majority and minority opinions
on the vexed issue whether or not the President
can be sued personally sued .. .. 325
(v) Conclusion .. .. 328
OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS 330
Introduction 330
PART A
and freedoms 331
into force of Constitution, 1992 339
3. Enjoyment of fundamental human rights under the Constitution, 1992 346
(i) jurisdiction to enforce fundamental human rights .. 346
(ii) rights declared as constituting fundamental human
rights and freedoms .. 347
PART B
(b) right of person arrested for committing or about to
commit a criminal offence to a fair trial within a
reasonable time 355
(c) right of a person actually charged before a court
to a fair hearing within a reasonable time .. 362
(d) right of a person charged not to be tried in absentia 363
(e) no conviction for a criminal offence unless the offence
is defined and penalty prescribed 365
(f) the right of a person charged to be informed immediately
ix
as to nature of offence in a language he understands 372
(g) right of an accused person to be given reasons
by trial court for his conviction for a criminal offence 374
(ii) Observance and enjoyment of administrative justice as a
fundamental human right .. 378
(iii) Freedom of assembly and the right to demonstrate 383
(iv) Freedom of association including freedom to
form and join trade unions 391
(v) Freedom of speech and expression, including
freedom of the press and other media 398
(a) introduction 398
(vi) Fundamental right to freedom of speech and
expression: Ghana experience 404
(i) introduction 416
existing law 417
(iii) repeal of criminal law of libel and sedition by Act 602 of 2001 419
(iv) the law of criminal law of libel as limitation on freedom of
speech and expression before repeal by Act 602 of 2001 422
(v) the law of sedition as limitation on freedom of speech
and expression before repeal by Act 602 of 2001 427
(vi) retention or otherwise of law of sedition as limitation on
freedom of speech and expression 432
(vii) abuse of freedom of speech after repeal of criminal law of
libel and seditious laws by Act 602 of 2001 443
x
1992 on limitations of rights and freedoms 450
(ix) need for balancing exercise .. .. 457
(x) constructive criticism of government and need for a
responsible media 458
(xi) contempt of court as limitation on freedom of speech
and expression including freedom of the press 460
(xi) Conclusion on the Supreme Court an the enforcement
of fundamental human rights and freedoms .. 467
CHAPTER VIII: THE SUPREME COURT AND THE
ENFORCEMENT OF THE CONSTITUTION, 1992 469
1. Introduction 469
of the Constitution 470
Constitution 471
(ii) Locus standi and proof of the existence or otherwise
of personal interest or controversy or dispute 474
(a) the need to prove an act or omission or
existence of controversy or dispute .. 475
(b) the need to prove personal interest in
enforcement action .. 484
of its enforcement action 492
(d) plea of estoppel as bar to enforcement action 495
(iii) Jurisdiction to enforce the Constitution as distinct from
enforcing fundamental human rights 498
(a) jurisdiction where action dressed as an
interpretation of enforcement action 499
xi
(b) time within which to seek an enforcement of the
Constitution 513
election petition by the High Court 514
(d) jurisdiction in redressing violations of fundamental
human rights 519
Constitution as distinct from fundamental human
rights and freedoms 531
(iv) Enforcement of the Constitution in the face of injustice
and illegalities and autocratic legislative action 533
(v) Enforcement of the Constitution and delays in
delivering justice. 545
of accrued rights. 564
xii
TABLE OF ABBREVIATIONS AC Appeal Cases (England) All ER All England Law Reports AFRC Armed Forces Revolutionary Council BCLR Bhupathatswana Constitutional Law Reports Can Bar Rev Canadian Bar Review CC Current Cases (Ghana) CHRAJ Decisions of the Commission on Human Rights
and Administrative Justice (1994-2000) CLB Commonwealth Law Bulletin CLR Commonwealth Law Reports (Australia) CRR Canadian Rights Reporter DLR Dominion Law Reports (Canada) GBR Ghana Bar Reports GG Gyandoh and Griffiths Ghana Constitutional Cases GLR Ghana Law Reports GLRD Ghana Law Reports Digest GR The Gambia Law Reports ICLQ International & Comparative Law Quarterly LRC Law Reports of the Commonwealth LRC (Const) Law Reports of the Commonwealth (Constitution) MLJ Malayan Law Journal NLC National Liberation Council NLPC Nigerian Law of the Press under the Constitution NRC National Reconciliation Commission NWLR North Western Nigerian Law Reports PNDC Provisional National Defence Council RGL Review of Ghana Law SA South African Law Reports SC of India Reports of the Supreme Court of India SC of Nigeria Supreme Court of Nigerian Law Reports SCGLR Supreme Court of Ghana Law Reports SMC Supreme Military Council Sri LR Sri Lanka Law Reports UGLJ University of Ghana Law Journal UKHL United Kingdom Human Rights Law UNGA United Nations General Assembly UNTS United Nations Treaty Series US United States Law Reports
xiii
WILJ West Indian Law Journal WIR West Indian Law Reports
xiv
ACKNOWLEDGEMENTS I owe a debt of gratitude to Professor B P Wanda, Department of Private
Law, UNISA first, for kindly agreeing to be my promoter; and second, for
his kindness, patience and competence in supervising the study and also for
the continuing interest in my work. But for his guidance and very useful
advice and comments, the results achieved in the study would have been
impossible. Any imperfections in this study are entirely my own. I would
like to thank him against for his keen supervision despite his busy schedule,
which has made the writing and presentation of the thesis possible.
I would also like to acknowledge the invaluable encouragement and useful
advice given to me by Professor Joan Church, formerly of the Department of
Jurisprudence, UNISA, whom I had the privilege of meeting and talking to
in 1999 whilst we both attended the Commonwealth Legal Education
Conference in Kuala Lumpur, Malaysia. I am also very much indebted to
my long time personal friend and confidant and a fellow Ghanaian,
Professor John Baloro, formerly Dean of the Faculty of Law, Bloemfontein
Campus, Vista University, for his constant encouragement and advice and
assistance rendered to me in so many diverse ways in the course of
undertaking the study. He did everything to assist me in pursuing the
research and writing of the dissertation. I cannot thank him highly enough.
I would also like to express my deepest thanks to my colleague at the Ghana
School of Law and a personal friend, Dr Lennox K Agbosu, Senior Lecturer
(now on retirement from the School – just like me) for his pieces of advice
and encouragement kindly given to me in the course of my study and
preparation for this dissertation.
xv
I would also like to express my sincere thanks to Ms Karen Breckon, Law
Librarian, UNISA Library – Law Collection, for drawing my attention to the
relevant literature on the subject. I would like to give special thanks to the
Librarian and Staff at the Library of the Institute of Advanced Legal Studies,
Russell Square, University of London, where I did the bulk of the reading of
the research material and literature on the subject.
I would also like to express special thanks to my personal secretary, Mr
Alfred Agbozoh, for his competence and expertise in typing out the
manuscripts in so many drafts and for deciphering my difficult to read
handwriting. He has proved very kind and helpful and shared with me the
stress and numerous difficulties, anxieties and frustrations arising from the
constant unexpected shutdown of my computer, containing the files on the
dissertation. I shall always remain in his debt.
Finally, I would also like to thank most sincerely my family: my wife,
Barbara, and children Rita, Akyere and Aba Sika for their constant prayers
for my success. I am particularly very grateful to my son-in-law, Mr
Edmund Setse of the FAO United Nations Regional Office, Accra for giving
me all the technical advice regarding the computer typesetting of the
manuscripts and also for forwarding by email, the Thesis in PDF format to
my Promoter, Professor B P Wanda. I also wish to express my sincerest
thanks to him for assisting me in so many diverse ways. He and his
colleague, Mr Johnny Nikoi, a computer specialist, always and readily gave
me invaluable assistance whenever I encountered very serious computer
technical problems. I would also like to render my sincere thanks to Ms
Victoria Amartey, LLB (Hons), resident in London, my former course mate
xvi
at the Inns of Court School of Law, Gray’s Inn, London, for her
encouragement, prayers, kind suggestions and best wishes for my success.
Finally, I would like to thank all those who, in one way or the other, assisted
me to pursue this study. May the Almighty God richly bless them all.
1 February 2005,
DISSERTATION
STATEMENT OF THE CENTRAL THEME
I shall in this chapter examine the central theme of this dissertation on The Role of the
Supreme Court in the Development of Constitutional Law in Ghana. In that regard, it appears
from the decisions and pronouncements by judges in the Supreme Court, which had been
established under the Ghana Republican Constitutions of 1960, 1969 and 1979, that their
stated objectives had always been the defence of the Constitution, the rule of law and the
tenets of democracy as they understand it. Recent decisions of the present Supreme Court
since the coming into force of the Fourth Republican Constitution of 1992, project similar
objectives. In concrete terms, the court seems to recognize that it has a role to play in the
promotion, enforcement and sustenance of a truly democratic system of government, good
governance and fundamental human rights and freedoms in Ghana. This is the theme running
through the chapters of the dissertation. The role in short is for the court to ensure, in the
words of Kpegah JSC in the case of Amidu v President Kufuor,1 “the maintenance of the
culture of constitutionalism.” In that same case Kpegah JSC also poignantly said:2
“Every student of the Constitutional Law of Ghana might have felt, after reading
the celebrated case of In re Akoto, [1961] 2 GLR 523, SC that if the decision had
gone the other way, the political and constitutional development of Ghana
would have been different. ‘Different’ in the sense that respect for individual
1 [2001-2002] SCGLR 86. 2 Ibid at page 138 (emphasis is mine).
2
rights and the rule of law might well have been entrenched in our land, and we
who now occupy this court would have had a well-beaten path before us to tread
on in the discharge of our onerous responsibilities imposed upon us by the 1992
Constitution.”
And Adjabeng JSC, in his opinion in the same case of Amidu v President Kufuor, also
said:3
“It must be noted that our 1992 Constitution has firmly established the rule of
law in the country. The Constitution makes it clear that everybody in this
country, including His Excellency, the President, is under the Constitution and
the law. This is clearly what we mean by the rule of law…And I have no doubt
that adherence to this policy will indeed bring about real democracy… and
therefore real freedom, justice and prosperity.”
That role had earlier been also succinctly and simply put by Amua-Sekyi JSC in the case of
New Patriotic Party v Attorney-General (31st December Case)4 when, in delivering his
opinion in support of the majority decision in that case, he said:5 “We have the duty and the
right and the power to ensure that the provisions of the Constitution, 1992 are observed.”
It is suggested that the role of the Supreme Court in contributing to the development of
Constitutional Law of Ghana is very crucial and challenging. That is because a national
constitution such as the previous Republican Constitutions of 1960, 1969 and 1979, and the 3 Ibid at page 175. 4 [1993-94] 2 GLR 35, SC. 5 Ibid at 123.
3
present Fourth Republican Constitution of 1992, cannot possibly contain all the provisions
governing every aspect of governmental activities. The provisions cannot also capture the life
and activities of the individual in relation to the coercive powers of the State. In this respect,
it might be observed that the United States Federal Constitution, adopted on 17 September
1787, consists of only seven short articles and 27 Amendments as of 7 May 1992, when the
27th Amendment was ratified.6 It has been the distinctive role of the United States Supreme
Court to interpret the Constitution which had led to the development of American
Constitutional Law. The Ghana Supreme Court has a similar role to play! Wade and Bradley
in their book made the point clearer when they wrote: 7
“But no written document alone can ensure the smooth working of a system of
government. A written document has no greater force than that which persons in
authority are willing to attribute to it… Nor can a written constitution contain all
the detailed rules upon which government depends.”
Commenting on the central thesis of Professor William B Harvey’s book:8 Dr Nana S
K B Asante9 in an article wrote:10…
LAW IN GHANA
IN THE DEVELOPMENT OF CONSTITUTIONAL LAW IN GHANA
by
SETH YEBOA BIMPONG-BUTA
Submitted in accordance with the requirements for the degree of DOCTOR OF LAW – LLD
at the UNIVERSITY OF SOUTH AFRICA
PROMOTER PROFESSOR B P WANDA
1 February 2005
iii
ABSTRACT The Theme running through this Dissertation is intended to prove that the Supreme Court has a role to play in the promotion, enforcement and sustenance of a proper democratic system of government, good governance and fundamental human rights and freedoms in Ghana. The Study would therefore address the role of the Supreme Court in the development of Constitutional Law in Ghana, with particular emphasis on the court’s contribution to the underlying concepts of the Fourth Republican Constitution of 1992; the guiding principles of constitutional interpretation and the vexed issue of whether the court should adopt a mechanical and literal approach to the interpretation of the Constitution or adopt a liberal, beneficent and purposive approach. The Supreme Court has asserted in the locus classicus decision: Tuffuor v Attorney-General [1980] GLR 637 that the 1979 Constitution as the supreme law, must be construed as a living political document capable of growth. Is there any evidence now to support that claim? The study shall also investigate the question of the power of the Supreme Court to review legislative and executive action. We shall also examine the role of the Supreme Court in the interpretation and enforcement of the Constitution and Fundamental Human Rights and Freedoms in relation to the rights and obligations of the individual and the State with the view to achieving good governance. The 1992 Constitution itself is founded on the premise that there are limitations to the enjoyment of fundamental human rights and freedoms. What is the extent of such limitations as determined by the Supreme Court? What has been the Supreme Court’s contribution to the sustenance of political stability and democratic governance and, especially, in matters relating to coup d’etats and to enforcement of the Constitution itself as distinct from the enforcement of fundamental human rights and freedoms? Has the Supreme Court power to enforce the Constitution and the existing law where there is proven case of injustice and illegality? Has the Supreme Court power to enforce Directive Principles of State Policy as formulated in chapter 6 of the 1992 Ghana Constitution?
TITLE OF THE THESIS THE ROLE OF THE SUPREME COURT IN THE DEVELOPMENT
OF CONSTITUTIONAL LAW IN GHANA Key terms: Meaning of Constitutional Law; importance and meaning of democracy and good governance; Underlying concepts of the Fourth Republican Constitution of 1992; Supreme Court and guiding principles of constitutional interpretation; Supreme Court and judicial review of legislative and executive action; Supreme Court and interpretation or enforcement of fundamental human rights and freedoms; limitations on enjoyment of fundamental human rights and freedoms; jurisdiction of the Supreme Court in interpretation or enforcement of the Constitution; principles pertaining to the enforcement of the Constitution.
iv
TABLE OF C O N T E N T S
Page
THEME OF THE DISSERTATION 1
(i) Statement of the central theme 1
(ii) Meaning of constitutional law 6
(iii) Importance and meaning of democracy and
good governance .. .. 10
(vi) Methodology, work division and scope of the dissertation .. 19
(vii) Conclusion .. .. 20
AND THE LEGAL SYSTEM IN GHANA .. 25
PART A: CONSTITUTIONAL EVOLUTION IN GHANA .. 25
v
(i) Sources of Law .. .. 33
(ii) The judicial system in Ghana (the past and present) .. 41
(iii) Independence of the judiciary .. .. 48
(iv) Composition of the Supreme Court .. .. 56
(v) Qualifications for appointment as Chief Justice or Justice of the
Supreme Court .. .. 65
(a) appellate jurisdiction .. .. 68
(b) review jurisdiction .. .. 69
Conclusion .. .. 72
THE CONSTITUTION, 1992 73
(iii) Doctrine of separation of powers .. .. 101
(iv) Doctrine of non-justiciable political question .. 109
(v) Doctrine of mootness .. .. 136
(vi) Conclusion .. .. 147
OF THE CONSTITUTION 149
(i) general principles of constitutional interpretation 155
(ii) need for benevolent, broad, liberal and purposive
construction of a national document 159
(iii) benevolent construction on provisions on the right to vote 166
vi
(iv) national constitution to be viewed as a document
sui generis to be construed not necessarily according to ordinary rules
and presumptions of statutory interpretation .. 169
(v) National constitution to be construed as political document
capable of growth .. 184
(vi) Role of Directive Principles of State Policy as tool for
constitutional interpretation 187
(vii) Role of the spirit of the Constitution as a tool
for interpretation 189
Conclusion .. .. 202
CHAPTER V: THE SUPREME COURT AND THE POWER OF JUDICIAL REVIEW
OF LEGISLATIVE ACTION 206
(i) general introduction 206
(a) introduction .. .. 208
(b) examination of ambit of judicial review of legislative action 210
(iii) Ouster clauses and judicial review of legislative action 227
(a) introduction .. .. 227
(b) the indemnity clause in section 34(3) and 36(2) of the
transitional provisions .. .. 228
(iv) Legality of coup d’etats and judicial review of
legislative action 244
(a) introduction .. .. 244
(b) examination of the issue of the legality of a coup d’etat 244
(v) Constitutionality of the Fast Track High Court 258
(a) introduction .. .. 258
(b) creation and purpose of the Fast Track High Court 259
(c) the facts and central issue for determination .. 261
(d) determination of the central issue .. 263
vii
(e) application for a review of the majority decision 274
(f) crucial issue for determination in review application 278
(g) rationalization of the ordinary and review bench
decisions in the Tsatsu Tsikata case .. 284
(vi) Conclusion 286
CHAPTER VI: THE SUPREME COURT AND THE POWER OF JUDICIAL
REVIEW OF EXECUTIVE ACTION 287
(i) Introduction 287
relating to compulsory retirement of public officers 288
(a) introduction .. .. 288
(c) can the decision in Yovuyibor case .. 292
(d) can the decision in Yovuyibor case be supported 295
(iii) Challenge to executive action relating to local
government administration 305
(a) introduction .. .. 305
administration .. .. 306
(iv) Can the President be sued personally in the exercise
of executive functions? 309
amenable to court proceedings .. 310
(c) reasoning for the majority and minority opinions
in NPP v President Rawlings .. .. 311
(d) rationalization of the majority and minority opinions
on the vexed issue whether or not the President
can be sued personally sued .. .. 325
(v) Conclusion .. .. 328
OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS 330
Introduction 330
PART A
and freedoms 331
into force of Constitution, 1992 339
3. Enjoyment of fundamental human rights under the Constitution, 1992 346
(i) jurisdiction to enforce fundamental human rights .. 346
(ii) rights declared as constituting fundamental human
rights and freedoms .. 347
PART B
(b) right of person arrested for committing or about to
commit a criminal offence to a fair trial within a
reasonable time 355
(c) right of a person actually charged before a court
to a fair hearing within a reasonable time .. 362
(d) right of a person charged not to be tried in absentia 363
(e) no conviction for a criminal offence unless the offence
is defined and penalty prescribed 365
(f) the right of a person charged to be informed immediately
ix
as to nature of offence in a language he understands 372
(g) right of an accused person to be given reasons
by trial court for his conviction for a criminal offence 374
(ii) Observance and enjoyment of administrative justice as a
fundamental human right .. 378
(iii) Freedom of assembly and the right to demonstrate 383
(iv) Freedom of association including freedom to
form and join trade unions 391
(v) Freedom of speech and expression, including
freedom of the press and other media 398
(a) introduction 398
(vi) Fundamental right to freedom of speech and
expression: Ghana experience 404
(i) introduction 416
existing law 417
(iii) repeal of criminal law of libel and sedition by Act 602 of 2001 419
(iv) the law of criminal law of libel as limitation on freedom of
speech and expression before repeal by Act 602 of 2001 422
(v) the law of sedition as limitation on freedom of speech
and expression before repeal by Act 602 of 2001 427
(vi) retention or otherwise of law of sedition as limitation on
freedom of speech and expression 432
(vii) abuse of freedom of speech after repeal of criminal law of
libel and seditious laws by Act 602 of 2001 443
x
1992 on limitations of rights and freedoms 450
(ix) need for balancing exercise .. .. 457
(x) constructive criticism of government and need for a
responsible media 458
(xi) contempt of court as limitation on freedom of speech
and expression including freedom of the press 460
(xi) Conclusion on the Supreme Court an the enforcement
of fundamental human rights and freedoms .. 467
CHAPTER VIII: THE SUPREME COURT AND THE
ENFORCEMENT OF THE CONSTITUTION, 1992 469
1. Introduction 469
of the Constitution 470
Constitution 471
(ii) Locus standi and proof of the existence or otherwise
of personal interest or controversy or dispute 474
(a) the need to prove an act or omission or
existence of controversy or dispute .. 475
(b) the need to prove personal interest in
enforcement action .. 484
of its enforcement action 492
(d) plea of estoppel as bar to enforcement action 495
(iii) Jurisdiction to enforce the Constitution as distinct from
enforcing fundamental human rights 498
(a) jurisdiction where action dressed as an
interpretation of enforcement action 499
xi
(b) time within which to seek an enforcement of the
Constitution 513
election petition by the High Court 514
(d) jurisdiction in redressing violations of fundamental
human rights 519
Constitution as distinct from fundamental human
rights and freedoms 531
(iv) Enforcement of the Constitution in the face of injustice
and illegalities and autocratic legislative action 533
(v) Enforcement of the Constitution and delays in
delivering justice. 545
of accrued rights. 564
xii
TABLE OF ABBREVIATIONS AC Appeal Cases (England) All ER All England Law Reports AFRC Armed Forces Revolutionary Council BCLR Bhupathatswana Constitutional Law Reports Can Bar Rev Canadian Bar Review CC Current Cases (Ghana) CHRAJ Decisions of the Commission on Human Rights
and Administrative Justice (1994-2000) CLB Commonwealth Law Bulletin CLR Commonwealth Law Reports (Australia) CRR Canadian Rights Reporter DLR Dominion Law Reports (Canada) GBR Ghana Bar Reports GG Gyandoh and Griffiths Ghana Constitutional Cases GLR Ghana Law Reports GLRD Ghana Law Reports Digest GR The Gambia Law Reports ICLQ International & Comparative Law Quarterly LRC Law Reports of the Commonwealth LRC (Const) Law Reports of the Commonwealth (Constitution) MLJ Malayan Law Journal NLC National Liberation Council NLPC Nigerian Law of the Press under the Constitution NRC National Reconciliation Commission NWLR North Western Nigerian Law Reports PNDC Provisional National Defence Council RGL Review of Ghana Law SA South African Law Reports SC of India Reports of the Supreme Court of India SC of Nigeria Supreme Court of Nigerian Law Reports SCGLR Supreme Court of Ghana Law Reports SMC Supreme Military Council Sri LR Sri Lanka Law Reports UGLJ University of Ghana Law Journal UKHL United Kingdom Human Rights Law UNGA United Nations General Assembly UNTS United Nations Treaty Series US United States Law Reports
xiii
WILJ West Indian Law Journal WIR West Indian Law Reports
xiv
ACKNOWLEDGEMENTS I owe a debt of gratitude to Professor B P Wanda, Department of Private
Law, UNISA first, for kindly agreeing to be my promoter; and second, for
his kindness, patience and competence in supervising the study and also for
the continuing interest in my work. But for his guidance and very useful
advice and comments, the results achieved in the study would have been
impossible. Any imperfections in this study are entirely my own. I would
like to thank him against for his keen supervision despite his busy schedule,
which has made the writing and presentation of the thesis possible.
I would also like to acknowledge the invaluable encouragement and useful
advice given to me by Professor Joan Church, formerly of the Department of
Jurisprudence, UNISA, whom I had the privilege of meeting and talking to
in 1999 whilst we both attended the Commonwealth Legal Education
Conference in Kuala Lumpur, Malaysia. I am also very much indebted to
my long time personal friend and confidant and a fellow Ghanaian,
Professor John Baloro, formerly Dean of the Faculty of Law, Bloemfontein
Campus, Vista University, for his constant encouragement and advice and
assistance rendered to me in so many diverse ways in the course of
undertaking the study. He did everything to assist me in pursuing the
research and writing of the dissertation. I cannot thank him highly enough.
I would also like to express my deepest thanks to my colleague at the Ghana
School of Law and a personal friend, Dr Lennox K Agbosu, Senior Lecturer
(now on retirement from the School – just like me) for his pieces of advice
and encouragement kindly given to me in the course of my study and
preparation for this dissertation.
xv
I would also like to express my sincere thanks to Ms Karen Breckon, Law
Librarian, UNISA Library – Law Collection, for drawing my attention to the
relevant literature on the subject. I would like to give special thanks to the
Librarian and Staff at the Library of the Institute of Advanced Legal Studies,
Russell Square, University of London, where I did the bulk of the reading of
the research material and literature on the subject.
I would also like to express special thanks to my personal secretary, Mr
Alfred Agbozoh, for his competence and expertise in typing out the
manuscripts in so many drafts and for deciphering my difficult to read
handwriting. He has proved very kind and helpful and shared with me the
stress and numerous difficulties, anxieties and frustrations arising from the
constant unexpected shutdown of my computer, containing the files on the
dissertation. I shall always remain in his debt.
Finally, I would also like to thank most sincerely my family: my wife,
Barbara, and children Rita, Akyere and Aba Sika for their constant prayers
for my success. I am particularly very grateful to my son-in-law, Mr
Edmund Setse of the FAO United Nations Regional Office, Accra for giving
me all the technical advice regarding the computer typesetting of the
manuscripts and also for forwarding by email, the Thesis in PDF format to
my Promoter, Professor B P Wanda. I also wish to express my sincerest
thanks to him for assisting me in so many diverse ways. He and his
colleague, Mr Johnny Nikoi, a computer specialist, always and readily gave
me invaluable assistance whenever I encountered very serious computer
technical problems. I would also like to render my sincere thanks to Ms
Victoria Amartey, LLB (Hons), resident in London, my former course mate
xvi
at the Inns of Court School of Law, Gray’s Inn, London, for her
encouragement, prayers, kind suggestions and best wishes for my success.
Finally, I would like to thank all those who, in one way or the other, assisted
me to pursue this study. May the Almighty God richly bless them all.
1 February 2005,
DISSERTATION
STATEMENT OF THE CENTRAL THEME
I shall in this chapter examine the central theme of this dissertation on The Role of the
Supreme Court in the Development of Constitutional Law in Ghana. In that regard, it appears
from the decisions and pronouncements by judges in the Supreme Court, which had been
established under the Ghana Republican Constitutions of 1960, 1969 and 1979, that their
stated objectives had always been the defence of the Constitution, the rule of law and the
tenets of democracy as they understand it. Recent decisions of the present Supreme Court
since the coming into force of the Fourth Republican Constitution of 1992, project similar
objectives. In concrete terms, the court seems to recognize that it has a role to play in the
promotion, enforcement and sustenance of a truly democratic system of government, good
governance and fundamental human rights and freedoms in Ghana. This is the theme running
through the chapters of the dissertation. The role in short is for the court to ensure, in the
words of Kpegah JSC in the case of Amidu v President Kufuor,1 “the maintenance of the
culture of constitutionalism.” In that same case Kpegah JSC also poignantly said:2
“Every student of the Constitutional Law of Ghana might have felt, after reading
the celebrated case of In re Akoto, [1961] 2 GLR 523, SC that if the decision had
gone the other way, the political and constitutional development of Ghana
would have been different. ‘Different’ in the sense that respect for individual
1 [2001-2002] SCGLR 86. 2 Ibid at page 138 (emphasis is mine).
2
rights and the rule of law might well have been entrenched in our land, and we
who now occupy this court would have had a well-beaten path before us to tread
on in the discharge of our onerous responsibilities imposed upon us by the 1992
Constitution.”
And Adjabeng JSC, in his opinion in the same case of Amidu v President Kufuor, also
said:3
“It must be noted that our 1992 Constitution has firmly established the rule of
law in the country. The Constitution makes it clear that everybody in this
country, including His Excellency, the President, is under the Constitution and
the law. This is clearly what we mean by the rule of law…And I have no doubt
that adherence to this policy will indeed bring about real democracy… and
therefore real freedom, justice and prosperity.”
That role had earlier been also succinctly and simply put by Amua-Sekyi JSC in the case of
New Patriotic Party v Attorney-General (31st December Case)4 when, in delivering his
opinion in support of the majority decision in that case, he said:5 “We have the duty and the
right and the power to ensure that the provisions of the Constitution, 1992 are observed.”
It is suggested that the role of the Supreme Court in contributing to the development of
Constitutional Law of Ghana is very crucial and challenging. That is because a national
constitution such as the previous Republican Constitutions of 1960, 1969 and 1979, and the 3 Ibid at page 175. 4 [1993-94] 2 GLR 35, SC. 5 Ibid at 123.
3
present Fourth Republican Constitution of 1992, cannot possibly contain all the provisions
governing every aspect of governmental activities. The provisions cannot also capture the life
and activities of the individual in relation to the coercive powers of the State. In this respect,
it might be observed that the United States Federal Constitution, adopted on 17 September
1787, consists of only seven short articles and 27 Amendments as of 7 May 1992, when the
27th Amendment was ratified.6 It has been the distinctive role of the United States Supreme
Court to interpret the Constitution which had led to the development of American
Constitutional Law. The Ghana Supreme Court has a similar role to play! Wade and Bradley
in their book made the point clearer when they wrote: 7
“But no written document alone can ensure the smooth working of a system of
government. A written document has no greater force than that which persons in
authority are willing to attribute to it… Nor can a written constitution contain all
the detailed rules upon which government depends.”
Commenting on the central thesis of Professor William B Harvey’s book:8 Dr Nana S
K B Asante9 in an article wrote:10…
Related Documents
