30 years of Referendum 1992 : What the Lord Justices have said on constitutions

Ghana has transcended various regimes of Constitutional Democracy interspersed with the era of military juntas.

As far back as the days of the Gold Coast while under the British Colonialists, numerous constitutions were drafted under white Governors dispatched to lead the colony.

In 1916, a Constitution was drafted under Governor Clifford which among others, set up a Legislative Council made up of twenty-one (21) members with twelve (12) official members including the Governor and nine (9) unofficial members.

Subsequently, the Guggisberg Constitution of 1925 introduced for the first time the franchise in the Legislative Council.

Under the watch of Sir Allan Burns, the Gold Coast made another progress in constitutional governance when it adopted the Burns Constitution which also introduced for the first time an unofficial African majority in the Legislative Council.

After the 1948 disturbances and the formation of the Watson Commission and Coussey Committee, then came the 1951 Constitution which introduced the Speaker to the Legislative Council and gave the council power to legislate for the whole country.

The Nkrumah Constitution of 1954 made an outstanding input when it changed from Legislative Assembly to National Assembly.

In 1957, our year of independence, the new nation-state, adopted yet a new constitution to befit our independent status. The Constitution provided for a Governor-General who would be the Queen’s representative and who was to act as the constitutional monarch.

Ghana gain a Republican status on July 1, 1960, thus to mark this foot, the nation under its leader operationalized the 1960 Constitution which had been enacted on 29th June.

The Constitution was widely criticized and remains in history for giving enormous powers to the President like the power to legislate directly and overrule any other legislation.

It is worth re-iterating that per the amendment Act of 1964, the President could remove a judge.

Ghana practiced the Parliamentary System of Government under the 1969 Constitution with a President who was the Head of State and a Prime Minister who was the Head of Government.

Then came the 1979 Constitution which introduced a presidential system of government.  The Chief Executive was the Head of State, Head of Government, and Commander-In-Chief of the Armed Forces of Ghana.  He was assisted by a Vice President.

The current Constitution was approved exactly 30 years ago on April 28, 1992, through a National Referendum after about 92% approval. It was then officially adopted on January 7, 1993.

Per Article 1, the Constitution 1992 is the Supreme Law of the Land, and the people of Ghana are the exclusive reservoirs of Sovereignty.

WHAT THE LORD JUSTICES HAVE SAID ABOUT CONSTITUTIONS

Countless cases of constitutional interpretation have come up before their Lordships in the pre and the fourth Republican era for consideration. Every one of these cases has led to the entrenchment of the country’s constitutional jurisprudence even though a few left some shock stains in the annals of constitutional history.

In the popular case of RE Akoto and 7 others in which most legal scholars, jurists, and students were/are continually disappointed in the Justices for failing to uphold fundamental human Rights and Freedoms, the court per Korsah CJ held inter alia that; 

“We hold that the Preventive detention Act does not constitute a violation of the Constitution of the Republic of Ghana, consequently it is neither invalid nor void.”

Also “It will be observed that Article 13(1) is in the form of a personal declaration by the President and is in no way part of the general law of Ghana. On examination of the said declarations with a view to finding out how any could be enforced, we are satisfied that the provisions of Article 13(1) do not create legal obligation enforceable by a court of law.”

“Finally, the contention that the Preventive Detention Act, 1958 is contrary to the Constitution of the Republic of Ghana is untenable.”

There have however been several other cases that have enforced and strengthened our constitutional jurisprudence per their outcomes.

In the case of Mensima v Attorney General, in upholding the applicant's claim, the majority of the Supreme Court per Acquah JSC held that;

“Article 1(2) of the 1992 Constitution is the bulwark which not only fortifies the supremacy of the Constitution but also makes it impossible for any law or provision inconsistent with the Constitution to be given effect. And once the Constitution does not contain a schedule of laws repealed by virtue of its provisions,  whenever the constitutionality of any law vis-à-vis a provision of the Constitution is challenged, the duty of this court is to determine the authenticity of the challenge.  And in this regard, the fact that the alleged law has not been specifically repealed is totally immaterial and affords no validity to that law.  For article 1(2) contains a built-in repealing mechanism that automatically comes into play whenever it is found that a law is inconsistent with the Constitution.  It, therefore, follows that the submission based on the fact that the [refulation] 3(1)…of L I 239 [has] not been specifically repealed, and therefore valid, misconceives the effect and potency of article 1(2), and thereby underrates the supremacy of the 1992 Constitution.”

Further, in Tuffuor V Attorney General, the popular dictum of Sowah JSC (as he then was) that;

“A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller life."

 "The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power. The executive, the legislature, and the judiciary are created by the Constitution. Their authority is derived from the Constitution. Their sustenance is derived from the Constitution. Its methods of alteration are specified. In our peculiar circumstances, these methods require the involvement of the whole body politic of Ghana. Its language, therefore, must be considered as if it were a living organism capable of growth and development Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit to a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time.”

In his opinion in support of the majority decision of the Supreme Court in New Patriotic Party v Attorney-General (31st December Case),Aikins JSC said;

”In my view, even though Parliament has the right to legislate, this right is not without limit, and the right to enact a law that June 4 and December 31 should be declared public holidays cannot be left to linger in the realm of public policy.  Such legislation must be within the parameters of the power conferred on the legislature, and under article 1(2) of the Constitution, 1992 any law found to be inconsistent with any provision of the Constitution (the supreme law) shall, to the extent of such inconsistency, be void.”

Further to the above, Amua-Sekye JSC noted in the same case that; 

“As the fundamental or basic law the Constitution, 1992 controls all legislation and determines their validity. It is for the courts, as the guardians of legality, to ensure that all agencies of the State keep within their lawful bounds.”

Moreover, in the case of Ghana Bar Association v Attorney General, Wiredu JSC made a profound statement about Ghana’s Constitution.

“The Constitution, 1992 has established a new legal order for this country. Ghana is now in an era of constitutional supremacy as opposed to parliamentary sovereignty as it exists in Britain ...In Britain, no policy of the government or legislation …can be questioned in any of the British Courts.”

“In this country, however, under the new order of constitutional supremacy, the Constitution has vested the power of supervising and the enforcement of the Constitution in the Supreme Court, the judges of which have sworn to uphold and defend its provisions without fear or favour.  Parliamentary sovereignty as practised in Britain is alien to our new legal order. The Constitution has vested the power of judicial review of all legislation in the Supreme Court. It has done away with either an executive or parliamentary sovereignty and subordinated all the arms or organs of State to the Constitution."

Kpegah JSC in his long opinion in support of the unanimous decision in the Abban case said;

“The undeclared intention of the plaintiffs is to impeach the second defendant not only as of the Chief Justice but also as a judge of the Supreme Court by using the judicial process. For if we should declare that the second defendant is “not a man of high moral character and proven integrity" to occupy the position of Chief Justice, we would also equally have declared that he is not fit to be a Justice of the Supreme Court. This invidious scenario is not supported by the Constitution.”

In the case of JH Mensah v Attorney General, the majority of the Supreme Court per Acquah JSC noted that;

“Accordingly, I will refuse the plaintiff's second and third reliefs. In respect of the first relief, I take judicial notice that a newly inaugurated Parliament cannot immediately be ready with its various committees to approve presidential nominees. The Constitution, 1969 of Ghana, in article 64(3) thereof took care of the interim period from the inauguration of the President and the Parliament to the time Parliament gets settled down to approve nominees for ministerial appointments. There is no such provision in the Constitution, 1992. But until Parliament acting under article 298, makes a law to regulate the interim period, I will simply hold that on a true and proper interpretation of the Constitution, 1992 particularly articles 57(3), 58(1) and (3) 66(1), 76(1) and (2), 78(1), 79(1), 80, 81, 97(1), 100(1), and 113(1) and (3) no person can in each Parliament of the Fourth Republic after a reasonable time from that Parliament's inauguration, act as a minister or deputy minister of state without the prior approval of that Parliament.”

And in the more recent case of Justice Abdulai v The Attorney General, the Supreme Court unanimously held inter alia per  Kulendi JSC that ;

“In exercising its interpretative and enforcement mandate, the court has the power to adjudicate all and any allegations that any acts, omissions and enactments are inconsistent with and in contravention of the Constitution without the exceptions tendered to be suggested on grounds of the doctrine of political question”

AMENDMENT OR OVERHAUL OF THE CONSTITUTION 1992

There have been diverse calls for an amendment to the 1992 Constitution. Others have even called for a complete overhaul of the Constitution because to them, it has overgrown and like the popular dictum of Sowah JSC(as he then was) in Tuffuor v, Attorney General, the Constitution is a living document that is capable of growth.

However, speaking at the Forum for current legal issues by the Faculty of Law of the KNUST on the Topic: THE 1992 CONSTITUTION, LAW, AND DEVELOPMENT: AGENDA FOR REFORM, Nana Dr. S.K.B. Asante, who was the Chairman of the Constituent Assembly that drafted the document, was of the view that the Constitution has served the nation well and does not believe in the complete overhaul of the constitution.

Further, he noted that the ills of the governance structure, must not necessarily be blamed on the Constitution?

“If you sit down and consider the things you are not happy about the evils that bedevil our system of governance. I do not think that the effects in the Constitution are primarily responsible for those. Far from which if there is corruption, that has been attributable to lapses or defects in the constitution, As there is no technological progress. Is it due to the Constitution?”

“If people assume power for the sake of acquiring power without any thoughts of the developmental use of power, is it due to the constitution?”