Facts:
The plaintiffs, a registered political party, sued in the Supreme Court under article 2(1) of the Constitution, 1992 for a declaration, inter alia, that the Council of Indigenous Business Associations Law, 1993 (PNDCL 312), was inconsistent with and in contravention of some specified articles of the Constitution, 1992 including articles 35(1) and 37(2)(a) and to the extent of that inconsistency, was void.
Preliminary Objections:
The Attorney-General raised three preliminary objection to the claim on the grounds:
- Only a natural person could bring an action under article 2(1) of the Constitution;
- Articles 35(1) and 37(2)(a) and (3) which were part of the provisions of the Directive
Principles of State Policy under chapter 6 of the Constitution, 1992 were not justiciable. - PNDCL 312 had been enacted upon the petition of the associations specified in the schedule to the Law to enable them to freely operate under the umbrella of a council similar to the Trades Union Congress, it was not in breach of their right to form or
join any association of their choice under articles 21(e) and 37(2)(a) of the Constitution
Holdings on Preliminary Objection:
-
- A “person” was defined in section 32 of CA 4 to include a body corporate. Since that meaning fitted the context in which “person” was used in article 2(1) of the Constitution, 1992 there was no necessity for applying the canons of statutory interpretation to determine its meaning. Moreover, the word “person” had been defined in article 297 of the Constitution, 1992 to include a natural as well as a legal person or a corporate person such as the plaintiff. Accordingly, the plaintiff had locus in the case. The Constitution, 1992 granted rights and freedoms to both natural and legal persons and under articles 3(4)(a) and 41(b) of the Constitution, it was the duty of every citizen both natural and legal to defend and uphold the Constitution through the enforcement procedure under article 2(1).
- It was clear from article 34(1) of the Constitution, 1992 and the report of the drafters of the Constitution that the Directive Principles of State Policy were principles of state policy which taken together constituted a sort of barometer by which the people could measure the performance of their government. Thus, they provided goals for governmental and legislative programmes and a guide to judicial interpretation but were not of and by themselves legally enforceable by any court.
However, where those principles were read in conjunction with other enforceable provisions of the Constitution as in the case of article 37(2)(a) and (3) with article 21(e) in respect of the right to freedom of association, by reason of the fact that the courts were mandated to apply them in their interpretative duty, they were justiciable. Furthermore, where any provision under chapter 5 of the Constitution, 1992 dealing with the directive principles could be interpreted to mean the creation of a legal right, i.e. a guaranteed fundamental human right such as the freedom of association under article 37(2)(a) of the Constitution, they became justiciable and protected by the Constitution, 1992. Thus, given the criteria or test for justiciability, while each case would depend on its peculiar facts, on the facts of the instant case, article 37(2)(a) regarding freedom to form an association free from state interference was a right which was justiciable.
- On the authorities, in testing any law for constitutionality, the court should not concern itself with the propriety or expediency of the impugned law, but with what the law itself provided. Accordingly, the fact that the organisations in section 4 of the Schedule to PNDCL 312 themselves had requested the enactment of that Law would not obviate the necessity for the requirement that the Law should pass the constitutional test.
The said article 37 (2) (a) and (3) of the 1992 Constitution provides as follows:
37 (2) (a) The State shall enact appropriate laws to assure –
(a) the enjoyment of rights of effective participation in the development processes including rights of people to form their own associations free from state interference and to use them to promote and protect their interests in relation to the development processes, rights of access to agencies and officials of the State necessary in order to realise effective participation in the development processes.37(3) In the discharge of the obligations stated in clause (2) of this article, the State shall be guided by international human rights instruments which recognize and apply particular categories of basic human rights to development processes.
Substantive Matter:
The court held sections, 3(b) and 4 of PNDCL 312 to be unconstitutional and struck them down as null and void by a majority of (4-1). The court reasoned that freedom of association implied freedom to disassociate, and since the law sought to compel the associations to register, it offended the constitutional provision guaranteeing freedom of association. Additionally, the fact that the minister had the absolute right to interfere by monitoring and making recommendations, the provisions of articles 21(e) and 37(2)(a) had been breached as that constituted state interference.
Section 4(1) of PNDCL 312 provides that:
The associations specified in the Schedule to this Law shall be registered with the Council:
- SCHEDULE
Section 4
Ghana National Association of Garages
National Drinking Bar-Operators Association
Ghana Hairdressers and Beauticians Association
Ghana National Tailors and Dressmakers Association
Ghana Co-operative Bakers Association
Federation of Ghanaian Jewelers
National Association of Refrigeration Mechanics
National Association of Traditional Healers
Federation of Market Women
Ghana National Traditional Caterers Association.â€Under section 3 of PNDCL 312, the functions of the CIBA, are to:
(a) register applicants under this Law;
(b) monitor the operations of the registered associations with a view to recommending improvements.
(c) foster harmony and understanding among member associations;
(d) provide such information and advice on matters relating[sic](13) to the interests of member associations as they may request;
(e) act as the representative of member associations in any negotiations with the Government.
Full Holdings from Ghana Law Reports:
- The organisations listed under section 4 of the Schedule were composed of individual persons with rights of freedom of association. Freedom of association meant freedom of people to voluntarily join together to form an association for the protection of their interests free from state interference. However, that freedom was effectively taken away, in the instant case, by the compulsion of the stated organisations to join CIBA under section 4 of PNDCL 312 which was not a regulatory law permitted under the Constitution, 1992. Since coercion implied some negation of choice and voluntariness, section 4 offended against article 21(e) and 37(2)(a) of the Constitution, 1992. Furthermore, since the freedom to associate implied the right to dissociate, the failure to provide the manner of leaving CIBA by the registered associations, took away the freedom of the concerned members to freely associate with others in violation of article 2l(e) of the Constitution, 1992.
- Since under sections 6 of PNDCL 312 it was the minister who appoints, inter alia, the executive secretary who was responsible for the day-to-day administration of the business of the council; and under section 13 it was the minister who by legislative instrument would make regulations for the effective implementation of the Law, the minister had in effect almost absolute control of the council. Thus, the function of the council under section 3(b) of PNDCL 312 to monitor the operations of the registered associations would necessarily involve and result in interfering in its affairs by the minister who was not a member of any of the registered associations but was in control of the CIBA council through his representatives and appointees. That was violative of articles 21(e) and 37(2)(a) of the Constitution, 1992 regarding the right of freedom of association free from interference.
