FIVE Observations by Justice Kulendi in Justice Abdulai v The Attorney General

Having affirmed its jurisdiction to hear the case brought in Justice Abdulai vs The Attorney General, the Supreme Court made some observations which are of critical note. The case brought by the plaintiff contested the constitutionality of the First Deputy Speaker of Parliament's decision to vote in a 30th November 2021 sitting of Parliament which saw the approval of the government's budget statement for 2022.

We have identified the key observations made by the Supreme Court's Justice Kulendi in its judgment released on Friday, 11th March, 2022. These observations are the subject of discussion in this case review.

This review necessarily calls focus to Justice Kulendi's admission when affirming the Supreme Court's jurisdiction that the Court's jurisdiction was properly constituted in the circumstances because the parties placed rival meanings on Articles 102, 104(1) and 104(3) of the Constitution.

The other observations made by the Supreme Court included the following;

The Novelty of the Case 

The Court noted that this was the first time such a matter had come before the Court. Thus, "is no case law-or even dicta-that, directly or indirectly, answers or speaks to any of the issues" presented in the dispute for resolution. The decision of the Court can therefore be called an original precedent. 

Constitutional Supremacy over Parliamentary Supremacy

The Court discussed the constitutional history of Ghana with regards to Parliamentary Supremacy (sovereignty) and Constitutional Supremacy. The Court stated that the 1992 Constitution establishes constitutional supremacy as against/over parliamentary supremacy. Consequently, neither Parliament nor its members, officer, orders, conventions or procedures is independent or exempt from the limitations imposed by the Constitution. 

The Court stated the Supremacy doctrine with regards to Parliamentary rules as follows: 

"…, even though Parliament is a master of its procedure, it cannot be overemphasized that all the House's rules, orders, procedures and practices also have a master, the 1992 Constitution of the Republic of Ghana. Specifically, the authority of Parliament to regulate its own procedure is expressly subject to provisions of the Constitution…" 

Political Question 

Political questions are issues a court will decline jurisdiction over because it involves the exercise of discretionary powers explicitly conferred on a specific branch of government. The Supreme Court stated that this decision must be distinguished from political question matters over which the Court has declined jurisdiction. The Court took the position that the issues before the Court were not political questions and raised real interpretative issues where it ought to exercise its original jurisdiction. 

Approach to Interpretation

In constitutional matters, the interpretative and/or enforcement jurisdiction of the Court is invoked. Thus, the Court's view is that in interpreting the Constitution, the court "…must construe the Constitution as a whole, adopting a broad liberal approach instead of a strait-jacketed, mechanical approach that does not take into account and give effect to the collective aspirations of the Ghanaian people…"