Separation of Powers, Court’s mandate: UG law lecturer makes proposals to Supreme Court

The lecture sought to spark and stimulate public discourse on the concept of Separation of Powers relative to the Supreme Court’s decision in Justice Abdulai v Attorney General.

Is allowance instantly strangers applauded

Private legal practitioner and lecturer at the University of Ghana School Of Law, Mrs. Clara Beeri Kasser-Tee has made some proposals to the Supreme Court, on how it can both manage its mandate under the 1992 Constitution, while at the same time upholding the doctrine of Separation of Powers. 

The first of her suggestions is that the Court must decline jurisdiction on grounds of a political question doctrine only where the dispute does not raise issues bothering on a breach of the constitution or that the issues that it raises, must have expressly been taken from the Supreme Court, and put within the remit of another branch of government. 

“An example of instances where the constitution has expressly taken a matter from the Supreme Court and put it within the remit of another branch of government or another forum is article 33, with respect to the enforcement of human rights. And article 115, with respect to parliamentary proceedings,” she said.

She also proposes that the Court should develop rules to aid them to draw a distinction between the political and legal aspects of the disputes, so undue advantage isn’t given to interested parties. 

“Where a matter is properly before the Supreme Court, and it’s not remitted to another branch or forum, but raises questions bothering on the political doctrine question, the Supreme Court ought to determine same, however with care, to separate the legal aspects from the political aspects and determine same without giving undue political fodder to any of the parties, or make comments that impune the intentions and actions of other branches of government,” she explained. 

Third, she suggests that the Court must develop rules to assist them archive the aforementioned suggestions and apply those rules consistently. 

“In doing so, the Court is able to stay within the remit of the law, maintain its legitimacy, and inspire confidence among the people, in the fact that the Court has no interest before it, but its interest is only the law.”

Her submissions were made at the first Speakers Seminal Lecture held on the topic; ‘Parliament, its business and the Supreme Court in perspective.’

The lecture sought to spark and stimulate public discourse on the concept of Separation of Powers relative to the Supreme Court’s decision in Justice Abdulai v Attorney General.

She noted that in some jurisdictions like the US, they decided to adopt the political questions doctrine, while others like South Africa practiced the judicial self-restraint doctrine. 

The political question doctrine is a question that the court will not consider because it involves the exercise of discretionary power by the Executive or Legislative branch of government.

Whereas the judicial self-restraint doctrine holds that the political sensitive nature of a dispute does not determine whether it is justiciable or not, instead, the distinction must be drawn between political and legal aspects of the disputes. Thus, a court may review the legality of a decision according to legal standards, but it is not entitled to review the political wisdom of the decision.

“I think our Supreme Court ought to manage this balance in light of the specific provisions of our constitution, the nature of its jurisdiction under our constitution and in the light of the principles of democracy, so that we could further deepen our democracy,” she said.