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Resisting Juristocracy in Ghana: Why the Supreme Court's decisions on Property Rights of Spouses have no constitutional basis

Source: Daniel Korang

Resisting Juristocracy in Ghana: Why the Supreme Court's decisions on Property Rights of Spouses have no constitutional basis
MarryRight Ghana

ABSTRACT

The 1992 Constitution of the Republic of Ghana, in its Article 22(2), tasked Parliament to, “as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.” It has been judicially acknowledged that Article 22 (3) (a) & (b) of the Constitution gives an inkling of what the said legislation should contain. Clearly, the lifeblood of the provisions in Article 22 (3) (a) & (b) is drawn from the legislation to be enacted under clause (2) of the same Article. Over three decades since the coming into force of the Constitution, Parliament has inexplicably failed to enact a law to regulate the property rights of spouses. To do justice to spouses who throng the judicial corridors to vindicate their property rights upon divorce, the Supreme Court has not only lamented the parliamentary sluggishness to enact a law on the property rights of spouses, but it has, under the guise of constitutional interpretation, taken the plunge to judicially implement the provisions of Article 22(2) and (3) of the Constitution in the absence of any legislative framework. The Supreme Court has evolved equitable principles for the distribution of matrimonial property upon divorce without any underlying statutory framework. This article accuses the Supreme Court of unwarranted incursions and trespass into domains specifically committed to Parliament by judicially implementing the provisions of Article 22(2) and (3) of the Constitution without an underlying legislation.. It is argued that the Constitution does not create any substantive right known as ‘property rights of spouses’, and that the interpretation placed on Article 22(2) and (3) of the Constitution by the Supreme Court is wholly unjustifiable and unsupported by the letter and spirit of that provision. It is the firm view of the present author that when Parliament went to sleep, the Supreme Court assumed legislative functions and purported to implement the provisions of Article 22(3) of the Constitution through constitutional interpretation. The article concludes that the decisions of the Supreme Court on property rights of spouses purportedly based on the provisions of Article 22(2) and (3) lack constitutional anchorage. The Supreme Court has succeeded in weaponising its interpretive jurisdiction, and dangerously reduced our democracy to juristocracy – ‘a government of unelected judges’. The article adopts a doctrinal analysis of the relevant provisions of the Constitution, judicial decisions and opinions of jurists on the subject.

Key words: divorce, property rights, jurisprudence, juristocracy, fundamental human rights, constitutional interpretation, legislative functions, Separation of powers


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