IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2026
CORAM: AMADU JSC (PRESIDING)
KWOFIE JSC
ADJEI-FRIMPONG JSC
DZAMEFE JSC
SUURBAAREH JSC
CIVIL MOTION
NO. J5/68/2025
25TH FEBRUARY ,2026
THE REPUBLIC
VRS
THE HIGH COURT, ACCRA (CRIMINAL DIVISION 2)
EX PARTE:
DANIEL YEVUGAH ………….. APPLICANT
1. ATTORNEY GENERAL
2. RAPHAEL TETTEVI
3. JASPER MAWULOLO AGUDOGO INTERESTED PARTIES
4. HOPE MOTTEY
RULING
ADJEI-FRIMPONG, JSC:
My Lords, in 1976, the then lawmakers passed a law, short-titled, Prohibited Organization Decree, S.M.C.D 20. Under Section 1 of the law, the following organizations were declared unlawful and prohibited;
“1. Prohibition of organization
(1) The following organizations are hereby declared unlawful and prohibited, namely,
(a) The organization known variously as the Togoland Liberation Movement, “T.L.M.”, or “T.O.L.I.M.O”, the National Liberation Movement of Western Togoland or “N.LM.W.T.” and
(b) Any other organization, by whatever name it is called, whose objects include advocating and promoting the secession from the Republic of Ghana of the former British mandated territory of Togoland or part of the territory or the integration of that territory with a foreign territory.
(c) Without prejudice to the generality of paragraph (b) of subsection (1), the President may, by executive instrument, declare an organization to be an organization to which the paragraph applies, and an organization so declared is an organization to which that paragraph applies.”
This piece of legislation is little known in application as paucity of cases under it in our courts would show. On 15th July 2021 however, the applicant before us and three (3) others were charged under this law before the Criminal Division of the High Court. The applicant appeared as the third accused.
From the facts narrated in the High Court, the Complainants in the case were officers of the Criminal Investigation Division of the Ghana Police Service. In September 2020, they embarked on an exercise to identify and cause the arrest of person(s) who were members of a group called Western Togoland Restoration Front (WTRF). The accused persons were arrested for allegedly being part of various affiliate groups whose main objective was to secede some parts of the country from the Republic of Ghana and form a new sovereign state.
The applicant and the others pleaded Not Guilty to the charges. They had contended essentially that their group was a Non-Governmental Organization incorporated under the laws of Ghana with the stated object of “the promotion of peace and solidarity among citizens, youth, education, support for the members and promotion of due respect for tradition”. They had contended that their entity was not protested to or said to be prohibited during its registration and incorporation under the laws of Ghana.
Their trial before the High Court had commenced and proceeded, the prosecution closed its case and the accused persons opened their defences. The applicant himself had closed his defence leaving the other accused to do so. It was at this late stage of the trial that, for the first time, the constitutionality of the law (SMCD 20) was mooted. The applicant mounted an application in the High Court seeking reference of the action to this Court to determine the constitutionality of the SMCD 20.
He had contended that the SMCD 20 was unconstitutional as it offended and was inconsistent with fundamental protections and guarantees particularly provided under Articles 17; 21(1)(a), (d) and (e); 26; 40; 55; 56 and 73 of the 1992 Constitution and was to be declared as such by the Supreme Court. Having deposed to matters to support his position in his affidavit, the applicant finally submitted:
“49. I am further advised and verily believe the same to be true that it is within the jurisdiction of this Honourable Court to refer the matter to the Supreme Court of Ghana under Article 130(2) of the 1992 Constitution, which mandates that any question relating to the enforcement or interpretation of the Constitution, or the validity of an enactment must be determined by the Supreme Court; and that given that SMCD 20 raises serious constitutional questions regarding fundamental human rights and freedoms, I respectfully submit that this Honourable Court is duty-bound to stay proceedings and refer that matter to the Supreme Court for determination.”
The Republic resisted the application arguing that SMCD 20 was part of the existing laws of Ghana which did not contravene any provisions of the Constitution; that, question of interpretation arose; That, even if any such question arose, the proper procedure was not by reference but by a direct originating application to this Court for such determination. It was further contended that at the time of the application, the applicant had already closed his defence at the trial. It was thought improper in law for an accused who had closed his defence in a trial to seek to challenge the law under which he was tried.
The learned trial judge largely bought into the arguments of the Republic. Reference was thus made to decisions of this Court that determined essentially that a court was not generally bound to make reference to the Supreme Court. In the words of the learned Judge; “…a reference to the Supreme Court is not mandatory simply because a mere reference has been made by a party to a constitutional provision. That it is not every case where the constitution or a provision of it is mentioned that a reference must be made. But it is when a real, genuine and substantial issue concerning the proper meaning and application of the constitution arises.” That said, she took the view that the situation before her was not the kind for which reference was to be made to this Court.
Proceeding further however, the learned judge appeared to have moved away from this initial position to narrow the issue down to a procedural one. She said:
“…There is no doubt that under Article 2(1) of the Constitution and 130(1) afore stated, the 3rd Accused/Applicant has the right to challenge the constitutionality of any enactment including SMCD 20 under which he was being tried. This is notwithstanding the fact that he has already opened his defence in this especially as he did so without the services of a counsel. However, I would seek to reiterate the fact that the right to enforce a provision of the Constitution or protect one’s right and freedoms is dependent on the processes or procedures or channel through which that person takes or goes through in order to be rightly heard by a Court.”
What we understand the learned Judge to be saying in effect was that the application made before her was not the appropriate procedure to attack the SMCD 20. She also took the view that the applicant had closed his case at the time of the application without any issue or controversy regarding the determination of a constitutional provision hence it was not proper to make reference at that stage of the proceedings under article 130(2) and Rule 67 of C.I 16.
THE INSTANT APPLICATION
The applicant invoked the Supervisory jurisdiction of this Court pursuant to article 132 of the Constitution and Rule 67 of the Supreme Court Rules, (C.I. 19) (as amended. The Court was prayed to issue an order in the nature of certiorari to bring up the said ruling of the High Court dated 27th March 2025 for purposes of being quashed and for quashing. The grounds of the application were set out as follows:
“a. Firstly, the Court wrongfully assumed jurisdiction to interpret the scope and operation of Articles 130(2) and 2(1) of the 1992 Constitution—an interpretative function that lies exclusively with the Supreme Court under Article 130(1). This assumption of jurisdiction is clear from the Court’s reasoning at pages 17 and 18 of the ruling (Exhibit SC-4), where it purported to delineate the appropriate constitutional route for raising questions of unconstitutionality.
b. Secondly, having assumed jurisdiction it did not possess, the Court proceeded to wrongly interpret Articles 130(2) and 2(1) as establishing separate and mutually exclusively procedural paths—suggesting that where the constitutionality of an enactment (as opposed to a constitutional provision) is in question, the proper procedure is to proceed under Article 2(1) rather than Article 130. This interpretation is erroneous and inconsistent with the constitutional text and the settled jurisprudence of the Supreme Court, which recognizes that questions concerning the constitutionality of enactments fall squarely within Article 130(1) and (2), and must be referred when such issues arise before a lower court.
c. Thirdly, the Court further reasoned that because the Applicant waited until after they had opened and closed their case before bringing the application for referral, this indicated that no issue of constitutional ambiguity or controversy had arisen. This reasoning not only imposes arbitrary and non-existent temporal [sic] on invoking constitutional rights but also misapprehends the referral obligation under Article 130(2), which is triggered not by the timing of an application but by the existence of a real and substantial constitutional issue—such as rival interpretations or a claim of unconstitutionality-which was clearly present on the face pf the record.”
RULING OF THIS COURT OF JULY 22, 2025.
This Court sat on July 22, 2025, heard and granted the application, the reasons for which were reserved and which we are opportuned to give in this delivery.
Granting the application on the July 22, we took the view that the applicant’s contention that the learned High Court Judge usurped the interpretative powers of this Court in her decision was unanswerable. The Learned Judge therefore committed a fundamental jurisdictional error in refusing to make reference to this Court. We did not end at that. We referred the question of the constitutionality of SMCD 20 to ourselves for determination. Making the latter decision, we considered our expansive jurisdiction contained in article 132 which provides:
“132. The Supreme Court shall have supervisory jurisdiction over all courts and over any adjudicating authority and may, in the exercise of that supervisory jurisdiction, issue orders and direction for the purpose of enforcing or securing the enforcement of its supervisory power.”
In REPUBLIC VRS HIGH COURT (FAST TRACK DIVISION) ACCRA, EX PARTE ELECTORAL COMMISSION (METTLE-NUNOO & ORS INTERESTED PARTIES) (2005-2006) SCGLR 514 at 543 to 544 Prof Ocran JSC highlighted the utility of this Court’s expansive article 132 powers as follows:
“I should state at the outset that while article 161 of the 1992 Constitution defines supervisory jurisdiction to include the traditional prerogative writs of hebeas corpus, certiorari, mandamus, prohibition and quo warranto, that jurisdiction is, of course, wider than those writs viewed either separately or collectively. It enables us to intervene in proceedings to rectify procedural lapses that clog the proper administration of justice. As I explained in In re Appenteng (Decd) [2005-2006] SCGLR 18 at 23-24, delivering the unanimous ruling of the Supreme Court on 19th January 2005:
“…we as the Supreme Court do retain our supervisory jurisdiction over all courts and over any adjudicatory authority, even when we decide that a particular order such as prohibition is not quite appropriate in a particular context. And we need to reiterate that under section 5 of the Courts Act, 1993 (Act 459), the Supreme Court may issue such directions as may be required for the purpose of enforcing or securing the enforcement of this supervisory power. Such directions may relate to such future cause of action in a suit as appear best to secure a just and expeditious disposal of a case, including all matters which may not already have been dealt with.”
Additionally, we had in mind our jurisdiction to exercise the powers of the High Court pursuant to article 129(4) of the Constitution which provides as follows:
“129(4) For the purpose of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and jurisdiction vested in any court established by this Constitution or any other law.”
This particular power under Article 129(4) is a broad-ranging one. Its intendment was not only to endow the Court with sufficient authority to supervise all courts and adjudicating authorities in terms of article 132 but also to empower it to discharge its mandate as the chief warden of the Constitution. Its compass would cover making orders or giving decisions which a court, or adjudicating body ought to have made or given, and disallowing orders or decisions which ought not to have been so made or given. It rules out any strict adherence to procedural formalities thereby allowing the Court, in deserving cases to make interventions to meet the justice of a case, promote the rule of law and ensure sound and effective justice delivery.
The above approach has been adopted in several decisions of this court such as in the case of REPUBLIC VRS HIGH COURT (COMMERCIAL DIVISION), ACCRA; EX PARTE ATTORNEY GENERAL (BALKAN ENERGY GHANA LTD & ORS INTERESTED PARTIES) [2011]2 SCGLR 1183, where in referring the constitutional issue in contention before it, it directed itself, as contained in the headnote (3) of the report as follows:
“(3) The remedies available to the Supreme Court, when exercising its supervisory jurisdiction under article 132, were not limited to the issuing of the conventional writs of certiorari, mandamus, prohibition, etc. The court was also empowered under article 132 to issue orders and directions, as shall be necessary to prevent illegalities, failure of justice and needless delays in the administration of justice…Additionally, the court would, in the exercise of its jurisdiction under article 129(4), which vested in the Supreme Court “all the powers, authority and jurisdiction vested in any court established by the Constitution or any other law”, refer to itself, in order to expedite the determination of the constitutional issue at stake, the determination of the following questions…”
From the foregoing, we are in this reasoning addressing two issues. First, whether the learned trial Judge erred in not staying proceedings and referring the constitutionality of SMCD 20 to this Court and second, the substantive issue itself, that is, whether SMCD 20 is inconsistent with the Constitution and must be struck down as such. We proceed to address the issues seriatiam.
As already noted, the High Court gave three reasons for not making reference. Distilled into their barest essence, these were (i) no issue of interpretation arose; (ii) the proper procedure was to apply to this Court directly and (iii) the defence had already closed at the time of the application hence no proper reference could have been made.
First, the decision of the trial Judge that no issue of interpretation arose was devoid of sound reasoning. There was no doubt that the quintessence of the application before her was a reference of the matter to this Court to have SMCD 20 declared unconstitutional and struck out as such.
Article 1(2) creates constitutional supremacy in our legal order. It states that the Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of the Constitution shall, to the extent of the inconsistency, be void. SMCD 20 was part of the existing law. As an existing law, it needed to pass the test of constitutionality when the issue was raised. Taylor J (as he then was) in the case of SAM VRS COMPTROLLER OF CUSTOMS & EXCISE (1971) 1 GLR 289 at 316 spoke of article 1(2) of the 1969 Constitution which provision is re-enacted in article 1(2) of the 1992 Constitution as follows:
“It seems to me that this constitutional provision at once cast a crucible. . . all the laws of the land and subjected them to the test of constitutional propriety. All those that failed the test became void and the task of an interpreter and therefore of a Ghanaian judge became to some extent simplified: It is to search in the crucible for the relevant remnants of the inconsistent provision so that he can refuse to give effect to them.”
Acquah JSC (as he then was) opined in MENSIMA VRS ATTORNEY-GENERAL [1997-98] SCGLR 159 at 199—200:
“In my view therefore, article 1(2) of the Constitution, 1992 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, 1992 to be given effect to. And once the Constitution, 1992 does not contain a schedule of laws repealed by virtue of article 1(2), whenever the constitutionality of any law vis-à-vis a provision of the Constitution, 1992 is challenged, the duty of this court is to examine the relevant law and the Constitution as a whole to determine the authenticity of the challenge.”
For ourselves, we reason that the determination of inconsistency or otherwise of SMCD 20 would involve an interpretative exercise which did not rest with the trial Court. It fell within the exclusive jurisdiction of this Court. The provisions in articles 2(1) and 130(2) came into play the moment the constitutionality of SMCD 20 and the quest of its striking down arose even at that stage of the trial. The learned trial Judge failed to apply her mind to the critical effect the issue bore on the proceedings. She ought to have noticed that the determination the applicant was seeking went to the very root of the proceedings before her. The fact that the charges for which the applicant and others were standing trial stood to collapse if SMCD 20 was found to be inconsistent with the Constitution should have informed her position. She should have adverted her mind to the long list of cases where this Court, in exercise of its power under article 130(2) of the Constitution has struck down legislations or provisions thereof for being inconsistent with the letter and spirit of the Constitution. The cases will include MENSIMA VRS ATTORNEY GENERAL (supra) where the Court struck down Regulation 3(1) of the Manufacture and Sale of Spirits Regulations, 1962 (L.I. 239) for being inconsistent with the letter and spirit of article 17(2); CENTER FOR JUVENILE DELINQUENCY VRS GHANA REVENUE AUTHORITY & ANOR [2018-2019]2 GLR 33 where the Court struck down paragraphs 1(9) and 2(8) of the First Schedule of Revenue Administration Act, 2016 (Act 915) for being inconsistent with the letter and spirit of articles 2(1), 130, 33(1), 48(2), 132, 133(1), 135 137(1), 140, 273(1) 273(5) and 280 of the Constitution; ADJEI-AMPOFO VRS ATTORNEY- GENERAL & ANOR [2011]2 SCGLR 1104 where the Court again struck down Section 63(d) of the Chieftaincy Act (Act 759) for being inconsistent with article 14(1) and 21(1)(g) of the Constitution. See also NPP VRS INSPECTOR GENERLA OF POLICE [1993-94]2 GLR 459, NPP VRS ATTORNEY-GENERAL (CIBA CASE [1996-97] SCGLR 729 and FEDERATION OF YOUTH ASSOCIATION OF GHANA (FEDYAG) VRS PUBLIC UNIVERSITIES OF GHANA [2010] SCGLR 265.
As she decided to refuse the application, the trial Judge should have paused and asked herself, what was to become of the question of the constitutionality of SMCD 20. It seems to us that, by refusing to make reference and proceeding with the trial, the trial judge had concluded an affirmative answer to the question. By that she assumed a role outside her jurisdictional province to usurp the clear authority of this Court under article 2(1) of the Constitution.
Trial Judges must always recognize that the reference jurisdiction of this Court under article 130(2) is a useful tool to aid justice delivery. Admittedly, it is one jurisdiction which may be abused. A party with a bad case may decide to throw in any such application to frustrate proceedings against him. But that is not a good reason for a trial court to turn a blind eye to obvious cases requiring reference. It is safer to proceed with the mindset that reference to this Court does not necessarily terminate proceedings in trial Courts. Proceedings are merely stayed to abide the decision of the Court as to the future course of the matter. This is the essence of the procedure set out in Rule 67 of the Rules of this Court that regulate reference which we reproduce as follows:
“(1) A reference to the Court for the determination of a question, cause or matter pursuant to a provision of the Constitution or of any other law shall be made by way of a case stated by the Court below, or by the person or authority making the reference.
(2) A case stated under subrule (1) shall contain—
(a) a summary of the action or matter before the Court below or the person or the authority from which or from whom the reference is made;
(b) the issue involved in the matter before the Court below or that person or authority;
(c) the matter or question referred for determination by the Court;
(d) the findings of fact relevant to the matter or question referred to the Court;
(e) the arguments of counsel
(f) the ruling or decision of the Court below or of that person, or authority; and
(g) a statement by the Court below that the determination of the constitutional matter or question is necessary to the determination of the action, where the reference is made under clause (2) of article 130 of the Constitution.”
At the risk of sounding repetitive, we know that any legislation made in excess of the powers conferred on the law-maker which is inconsistent with any provision of the Constitution would be declared a nullity and the only Court to so declare, is this Court in exercise of its power under articles 1(2) and 130(1) of the Constitution. We had no doubt in our minds at all, that the constitutionality of SMCD 20 arose in the matter and the trial Court was bound to make reference.
The second ground for the refusal to refer was that the proper procedure was to make an application to this court and not to request reference. The trial judge again got it all wrong. The provision in article 130(2) was clear. It states:
“(2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay proceedings and refer the question, of law involved to the Supreme Court for the determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.”
The trial court had no business determining any alternative procedure for the exercise of this Court’s exclusive original jurisdiction. Once there was case that fell within the exclusive original jurisdiction of this Court, her mandate was cut out. She was bound to make reference. She could not determine any procedural matters regarding the exercise of this Court’s jurisdiction. It appears the learned Judge was misled by a submission on behalf of the Republic. This had gone as follows:
“Respectfully, where a person states that a whole Act, SMCD 20, is unconstitutional, that does not amount to a dispute about a constitutional interpretation or a real and genuine issue of interpretation. That, in our view is an invocation of the original jurisdiction of the Supreme Court under Article 2 and that is not done by way of referral in the course of trial.”
To mention just in passing, this submission on behalf of the Republic is an admission sub silencio that an issue had arisen that fell within the exclusive jurisdiction of this Court. In any event, the submission is a prescription of a procedural channel to this Court unknown to the provisions of the Constitution particularly articles 2(1) and 130(2). The reference procedure under article 130(2) and what obtains under article 2(1) aim at the same goal of invoking the exclusive jurisdiction of the Supreme Court. The reference provision under 130(2) is to take care of already pending cases in which a constitutional issue has arisen without the need for the initiation of an independent action in the Supreme Court. It is in our view, to serve a procedural convenience only. Thus, implicit in the article 130(2) provision is a time saving and case management rationale in the sense that it saves the drudgery of having to commence a fresh action in this Court to invoke its original jurisdiction. The provisions under articles 2(1) and 130(2) were not meant to impose any strict procedural strictures the non-observance of which will excuse the constitutional obligation of a court to make reference in required cases. The trial Judge therefore committed a fundamental jurisdictional error when she generated her own procedural compartmentalization out of articles 2(1) and 130(2) to stand on to refuse the application before her for reference.
AFOKO VRS ATTORNEY-GENRAL [2018-2019]1 GLR 141 is one case where the Plaintiff filed a writ in this Court instead of moving the High Court to make reference for this Court’s determination of the question of the constitutionality of a nolle prosequi filed by the Attorney- General in the High Court. The Court’s sentiment on that approach was expressed through MARFUL-SAU JSC at page 147 of the report thus:
“Beside the arguments submitted to us by both counsel on the issue of jurisdiction, we believe appropriately, that once the nolle prosequi was entered in pending proceeding as it were, counsel for the plaintiff could have applied to the trial High Court, to refer the issue about the alleged unconstitutional exercise of the right to enter nolle prosequi in terms of article 296 to this court under our reference jurisdiction, under article 130(2) of the Constitution, 1992. This would have saved the plaintiff from issuing the writ. We do not think, however that failure to apply for a reference to this Court under article 130(2), would be sufficient ground to bar the plaintiff from taking the writ.”
The final ground upon which the trial Judge refused the application was that the applicant had closed his defence at the time he made the application. Again, she fell into another error. The stage of the proceedings before her did not matter to her constitutional obligation to make reference once a genuine question of constitutionality of an enactment was raised. In the AFOKO case, the constitutionality of the nolle prosequi had arisen at the very tail end of the proceedings. This Court was however ready to entertain the issue in exercise of its power under 130(2). We dare say that even a prisoner in jail may invoke the jurisdiction of this Court to strike down an enactment under which he or she had been tried, convicted and jailed. Fair trial rights to do not cease upon conviction and sentence. They extend to post-trial matters including appeals and similar processes.
From our standpoint, the allegation of unconstitutionality of the law under which the applicant and the others were charged struck at the very heart of their right to fair trial and due process of law, an equally important constitutional right which the trial Court was bound to uphold, and which could not be side-stepped on the pretensions of lateness of the application. The right to fair trial and due process is not subject to any notional limitations. We do know, among its critical constituent elements are the right to have adequate time and facilities to prepare a defence and the right to be tried under offence known to law. We are clear in our minds that the application before the trial Court challenged the status of SMCD 20 as proper law for which an offence could be properly laid and it was clearly within the right of the applicant, in order to make his defence in full, to obtain a pronouncement on the constitutional status of the law by this Court. Denying him this and doing otherwise was legally unwarranted and amounted to a fatal usurpation of the jurisdiction of this Court by the trial Court.
It was for the foregoing reasons that we granted the order of certiorari and quashed the decision of the trial Court not to make reference. We now go to the substantive issue of the constitutionality of the SMCD 20.
IS SMCD 20 UNCONSTITUTIONAL?
The applicant’s case was that SMCD 20 under which he was charged contravened a number of provisions of the Constitution. It was therefore to be declared unconstitutional and struck down as void. The provisions cited were articles; 21(1)(a); 21(1)(d); 21(1)(e); 26; 40; 55;56 and 73. For context, we reproduce the provisions here.
“21. (1) All persons shall have the right to—
(a) freedom of speech and expression, which shall include freedom of the press and other media;
(d) freedom of assembly including freedom to take part in processions and demonstrations;
(e) freedom of association, which shall include freedom to form or join trade unions or other associations, national and international, for the protection of their interest.”
“26. (1) Every person is entitled to enjoy, practice, profess, maintain and promote any culture, language, tradition or religion subject to the provisions of this Constitution.
(2) All customary practices which dehumanise or are injurious to the physical and mental well-being of a person is prohibited.”
“40. In its dealings with other nations, the Government shall—
(a) promote and protect the interests of Ghana;
(b) seek the establishment of a just and equitable international economic and social order;
(c) promote respect for international law, treaty obligations and the settlement of international disputes by peaceful means
(d) adhere to the principles enshrined in or as the case may be, the aims and ideals of—
(i) the Charter of the united Nations
(ii) the Charter of the Organization of African Unity;
(iii) the Commonwealth;
(iv) the Treaty of the Economic Community of West African States; and
(v) any other international organization of which Ghana is a member.”
“55. (1) the right to form a political party is hereby guaranteed.
Xxxxxxxxxxxxx”
“56. Parliament shall have no power to enact a law to establish or authorize the establishment of a body or movement with the right or power to impose on the people of Ghana a common programme or a set of objectives of a religious or political nature.”
“73. The Government of Ghana shall conduct its international affairs in consonance with the accepted principles of public international law and diplomacy in a manner consistent with the national interest of Ghana.”
Summary of applicant’s case
Touching on article 21(1)(a), the applicant’s argument was that the provision guarantees the right to freedom of speech and expression including freedom of the press and other media. Inconsistent with this guarantee, the SMCD 20 explicitly criminalizes slogans, labels, and campaigns associated with certain organizations, effectively gagging individuals and depriving them of their constitutionally protected right to free speech and expression. He contends that the right to express opinions, particularly on political and self-determination matters, is so fundamental to any democratic society; and that by imposing blanket restrictions on the expression of certain political and cultural identities, SMCD 20 is not only inconsistent with article 21(1)(a) but is also contrary to Ghana’s international obligations under the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and People’s Rights (ACHPR).
On article 21(1)(d) guaranteeing the right to freedom of assembly including freedom to take part in demonstration, the applicant argues that SMCD 20 effectively criminalizes political activism suppressing lawful and peaceful public gatherings that seek to advance certain political or social objectives.
It is the applicant’s further argument that SMCD 20 violates the Freedom of Association guaranteed under article 21(1)(e) by prohibiting the formation of organizations advocating for self-determination, particularly those linked to the former British Togoland, even when such advocacy is peaceful and conducted through democratic processes. This prohibition, according to the applicant, deprives individuals of their autonomy to organize for political, social or cultural purposes, rendering the law inconsistent with article 21(1)(e).
In further argument with reference to article 26 (affirming the right of every person to enjoy, maintain and promote any culture, language, tradition or heritage in accordance with law), the applicant submits that SMCD 20 undermines the cultural identity of affected communities whose very heritage, culture and history intertwined with the colonial project and history of the Togoland Trust territories. Again, by criminalizing expressions of historical, cultural and regional expressions, allegories and communal heritage, the Act infringes upon the fundamental right of communities to preserve and promote their cultural heritage, rendering it inconsistent with the Constitution’s protection of cultural rights.
Then, alleging breach of article 55, the applicant contends that by restricting the formation of political organizations, based on members’ objectives, SMCD 20 suppresses political pluralism, limits political discourse, and undermines the democratic legitimacy of Ghana’s electoral and political systems.
Turning to other breaches, the applicant refers to article 33(5) which stipulates that the fundamental human rights and freedoms expressly listed in Chapter Five were not exhaustive and further guarantees the enjoyment of all other rights and freedoms, including those recognized by international agreements and conventions to which Ghana is a party. Reference is made to article 40 which mandates Ghana to adhere to international law and treaties that promote human rights, self-determination and political participation and also article 73 reinforcing Ghana’s commitment to conducting its international relations in accordance with international law and biding obligations. Going into specifics, the applicant cites the following list of international instruments:
a. Article 1(1) of the International Covenant on Economic, Social and Cultural Rights (ICCPR)
b. Article 1(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
c. Article 20 of the African Charter on Human and People’s Rights (ACHPR)
d. article 1(2) of the United Nations Charter
e. UN General Assembly Resolution 1514 (XV)
f. Articles 10 and 11 of the ACHPR
g. Articles 21 and 22 of the ICCPR
h. Article 20 of the Universal Declaration of Human Rights (UDHR).
He contends that these instruments guarantee the inalienable rights of all peoples to self-determination, allowing them to freely determine their political status and pursue their economic, social and cultural development, their freedom of association and assembly and the freedom to engage in political advocacy, particularly in matters concerning political status and autonomy and the right to non-discrimination, particularly on grounds of ethnicity, place of origin and political opinion. He says the SMCD 20 criminalizes the exercise of these rights particularly for individuals and groups advocating for the British Togoland territories in direct violation of these international obligations.
In further argument, he draws this Court’s attention to the untested legal issue of whether a domestic enactment may be declared unconstitutional solely on account of its inconsistency with Ghana’s binding international obligations even where such obligations have not been domesticated by parliamentary enactment and says this case presents an opportunity to clarify a constitutional theory. He nonetheless contends that the binding international human rights obligations of Ghana, by virtue of articles 33(5), 40 and 73 have constitutional status. As such, any inconsistency with those obligations renders an offending statute unconstitutional and void.
Here, the applicant refers to this Court’s decision in NPP VRS IGP (supra) and submits in effect that the interpretation of articles 33(5), 40 and 73 as well as the question of whether Ghana’s binding international obligation are directly enforceable constitutional rights capable of invalidating inconsistent domestic laws, fall within the exclusive original jurisdiction of this Court under article 130(1)(a) of the Constitution.
Response of the Republic
The Republic’s responses to these arguments are fairly simple and are well captured in the following depositions in their affidavit filed in the trial Court:
“34. That as far as the Respondent is concerned, SMCD 20 is a valid and an existing enactment forming part of the laws of Ghana, and the offences outlined therein comply with the requirements of article 19(11) of the Constitution.
38. That the Respondent further contends that the fundamental human rights and freedoms the Applicant claims are being infringed by SMCD 20 are not absolute.
39. That article 12(2) of the 1992 Constitution explicitly states that the rights and freedoms enshrined therein are not absolute.
40. That from decided cases, rights and freedoms under Chapter Five of the 1992 Constitution may be reasonably restricted by legislation in the interest of national security, public order, public morality and the rights and freedoms of others.
41. That the Respondent contends that SMCD 20 serves such a purpose and is neither discriminatory not targeted at any specific group or region in the Republic of Ghana.
42. That for a group of individuals to rise and engage in activities to secede from Ghana constitutes a threat to national security, public order and the territorial integrity of the sovereignty of the Republic of Ghana.”
Resolution of the issue
We must at the very outset indicate that the issue we are dealing with is not whether the applicant and/or the others, actually committed the offence alleged. That was clearly a matter for the trial court to determine. We are here, determining the constitutionality of SMCD 20. For this purpose, we focus on what the law provides. We do not even concern ourselves with the propriety or expediency of the law. Even if we presume that the law maker meant well in enacting the law, the good intention of the law-maker alone, will not excuse the test of constitutionality once a genuine challenge to it has been mounted. Lord Diplock stated so in the Jamaican case of HINDS VRS R [1976] ALL ER 353 at 361:
“So in deciding whether any provisions of a law passed by the Parliament of Jamaica as an ordinary law are inconsistent with the Constitution of Jamaica, neither the courts of Jamaica nor their Lordships’ Board are concerned with the propriety or expediency of the law impugned. They are concerned solely with whether those provisions, however reasonable and expedient, are of such a character that they conflict with an entrenched provision of the Constitution and so can be validly passed.”
Now let us examine the text of SMCD 20 by reproducing the material provisions once again for convenience of reference.
“1. Prohibition of organization
(1) The following organizations are hereby declared unlawful and prohibited, namely,
(a) The organization known variously as the Togoland Liberation Movement, “T.L.M.”, or “T.O.L.I.M.O”, the National Liberation Movement of Western Togoland or “N.L.M.W.T.” and
(b) Any other organization, by whatever name it is called, whose objects include advocating and promoting the secession from the Republic of Ghana of the former British mandated territory of Togoland or part of the territory or the integration of that territory with a foreign territory.
(c) Without prejudice to the generality of paragraph (b) of subsection (1), the President may, by executive instrument, declare an organization to be an organization to which the paragraph applies, and an organization so declared is an organization to which that paragraph applies.
2. Offence and Penalty
(1) On and after the commencement of this Act, it is an offence for a person, in relation to an organization referred to in section 1
(a) to summon a person to a meeting of the organization;
(b) to attend or cause a person to attend a meeting of the organization;
(c) to publish a notice or an advertisement relating to a meeting of the organization;
(d) to prepare or participate in a procession or propaganda, or campaign of the organization;
(e) to use slogan or label of the organization;
(f) to invite persons to support the organization;
(g) to grant loan to, or make a contribution to, the funds held or to be held by, or for the benefit of, the organization or accept a loan or contribution;
(h) to give a guarantee in respect of a loan or the funds; or
(i) to be member of that organization.
3. Punishment of citizens
A citizen may be tried and punished for an offence under section 2 although the act in respect of the charge was committed wholly or partly outside the Republic.”
Under the above provisions three (3) categories of organizations are targeted for prohibition. The first is name specific, the Togoland Liberation Movement (T.L.M. or T.O.L.I.M.O.) and the National Liberation Movement of Western Togoland or “N.LM.W.T”. The second is not specifically identified. It refers to any other organization, by whatever name it is called, whose objects include advocating and promoting the secession from the Republic of Ghana of the former British mandated territory of Togoland or part of the territory or the integration of that territory with a foreign territory. The third is what the President may by an executive instrument, declare to be an organization to which the prohibition should apply. What runs through all three was the law-maker’s clear intention to prohibit organizations named or unnamed, certain or uncertain, whose objects will include the secession of any part of the territory from the Republic of Ghana. The law thus criminalizes acts of secession by any of the three categories through the conducts or activities listed under the Section 2 of the law.
Secession.
The concept of secession conveyed by the SMCD 20 bears on the principle of statehood under the rules of international law. International law nuance is thus introduced into the context of determining the constitutionality of the law. By secession, is meant the unilateral withdrawal from a State of a constituent part, with its territory and its population. As a consequence of the secession, the existing States splits into two; the State continues to exist, but a new State comes into existence concurrently. In other words, what was formerly a constituent part of the State becomes independent. Rather than create a new State, the separating part of a State may choose to join an existing State and that also amounts to secession.
Central to secession under international law is the principle of Self- determination. Technically, Self-determination falls into the category of peoples’ right and not human right perse. This is clearly reflected in the language of the relevant international Instruments. For instance, the International Covenant on Economic, Social and Cultural Rights, one of the key instruments provides the following under article 1:
“1. All peoples have right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation based upon the principle of mutual benefit and international law. In no case may a people be deprived of its own means of subsistence.
3.The States Parties to the present Covenant, including those having responsibility for the administration of Non Self-Governing and Trust Territories, shall promote the realization of the right of self-determination and shall respect that right in conformity with the provisions of the Charter of the United Nations.”
Despite what appear clear provisions of this and other instruments, the principle of Self-determination particularly the right to secession remains a debatable topic in international law. Its development from a colonial to post-colonial doctrine has been very controversial for many states, scholars and international lawyers alike. In the midst of the controversy however, two key principles have emerged.
First, cases of Self-determination are determinable within the internal legal framework of a state. And second, Self-determination is recognized largely in the context of decolonization and the people’s right to self-determination. International law generally disallows unilateral secession. In much limited cases, international legal instruments recognize the creation of new states, only when it transpires through non-violent means, most especially when the existing state approves of it. This presupposes that the internal constitution of a sovereign country is the guiding principle on the question of Self-determination and therefore secession. The legality of secession is thus determinable by the internal law ultimately, the constitution of the particular state, granted, it is at all acceptable in an already founded independent sovereign state. Malcom Shaw in his seminal work comments on the subject as follows:
“This principle [self-determination] noted in the United Nations Charter and emphasized in the 1960 Colonial Declaration, the 1966 International Covenants on Human Rights and the 1970 Declaration on Principles of International Law, can be regarded as a rule of international law in the light of, inter alia, the number and character of United Nations declarations and resolutions and actual state practice in the process of decolonization. However, it has been interpreted as referring only to the inhabitants of non-independent territories. Practice has not supported its application as a principle conferring the right to secede upon identifiable group within already independent states. The Canadian Supreme Court in the Reference Re Secession of Quebec case declared that ‘international law expects that the right to self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states. . . Accordingly, the principle of self-determination as generally accepted fits in with the concept of territorial integrity, as it cannot apply once a colony or trust territory attains sovereignty and independence except arguably in extreme circumstances.” See International Law, Malcom N. Shaw, 6th ed., Cambridge, at 522—523.
Indeed, the Supreme Court of Canada delivered itself in the RE SECESSION OF QUEBEC [1998] 115 I.L.R. 536 at 595-5 as follows:
“Although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the ‘people issue because. . . a right to secession only arises under the principle of self-determination of peoples at international law where a people is governed as part of colonial empire where ‘a people’ is subject to alien subjugation, domination or exploitation; and possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the states of which it forms part. In other circumstances, peoples are expected to achieve self-determination within the framework of the existing state. A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangement, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states.”
In the main, the Court ruled that neither the Canadian constitution nor international law allowed Quebec to secede from Canada unilaterally.
Long before the Quebec episode, the United States Supreme Court in TEXAS V WHITE 74 U.S. 700 had taken a stronger position on the issue of secession of the state of Texas from the Union of the states. The Court rejected the unilateral secession ordinance of Texas and declared it a nullity. Chief Justice Salmon Chase delivered himself in the following passages:
“The Union of the States never was purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual”. And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.”. It is difficult to convey the idea of indissoluble unity more clearly than these words. What can be indissoluble if a perpetual Union made more perfect, is not?
Rejecting the notion that Texas had created a mere compact with other States and rather that it had in fact incorporated itself into an existing indissoluble political body the Chief Justice opined:
“When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guarantees of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The Union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation., except through revolution or through consent of the States.” See also the Advisory Opinion of the International Court of Justice in the KOSOVO CASE ICGJ 423 (ICJ 2010), 22nd July 2010.
Against this background, let us now examine Ghana’s constitutional law position on secession and self-determination? Does the Constitution allow any room, by exercise of any rights to propagate self-determination? And do the prohibitions in SMCD 20 breach any Chapter 5 and other rights?
Without going into the doctrinal political controversies that visited the events leading to Ghana’s independence and its immediate aftermath, the first Republican Constitution was firm on the choice of unitarism as our system of government with consummate territorial integrity of its statehood. The 1960 Constitution had the following provisions under Part II:
“4. (1) Ghana is a sovereign unitary Republic.
(2) Subject to the provisions of Article 2 of the Constitution, the power to provide a form of government for Ghana other than that of a republic or for the form of the Republic to be other than unitary is reserved to the people.
5. Until otherwise provided by law, the territories of Ghana shall consist of those territories which were comprised in Ghana immediately before the coming into operation of the Constitution, including the territorial waters.
6. Until otherwise provided by law, Ghana shall be divided into the following Regions, which shall be respectively comprise such territories as may be provided for by law, that is to say, the Ashanti Region, the Brong-Ahafo Region, the Central Region, the Eastern Region, the Northern Region, the Upper Region, the Volta Region and the Western Region.”
Following the 1960 Constitution, Article 4(1) of the 1969 Constitution and article 5(1) of the 1979 Constitution contained provisions on the territories of Ghana in the following words:
“The sovereign State of Ghana is a unitary republic consisting of those territories comprised in the Regions which, immediately before the coming into force of this Constitution, existed in Ghana including the territorial waters and the air space.”
Article 4(1) of the 1992 Constitution re-enacts verbatim, the above provisions of the 1969 and 1979 Constitution. It states in article 4(1):
“The sovereign State of Ghana is a unitary republic consisting of those territories comprised in the Regions which, immediately before the coming into force of this Constitution, existed in Ghana including the territorial waters and the air space.”
The farthest the provisions go to affect the existing territorial arrangement is Article 5 which provides for the creation, alteration or merger of regions, which in any event entails a laborious process including the holding a referendum.
Then, article 35(1) and (2) also has the following provisions:
“35. (1) Ghana shall be a democratic state dedicated to the realization of freedom and justice; and sovereignty resides in the people of Ghana from whom Government derives all powers and authority through this Constitution.
(3)The state shall protect and safeguard the independence, unity and territorial integrity of Ghana, and shall seek the well-being of all her citizens.
Further, article 35(6)(a) mandates the state to take appropriate measures to “foster a spirit of loyalty to Ghana that overrides sectional, ethnic and other loyalties”.
Even more significant is that, in guaranteeing the rights under Chapter 5 of the Constitution, the framers saw the urgency of balancing the enjoyment of those rights with the performance of duties and obligations. Article 41 therefore provides:
“41. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligation, and accordingly, it shall be the duty of every citizen—
(a) To promote the prestige and good name of Ghana and respect the symbols of the nation;
(b) To uphold and defend this Constitution and the law;
(c) To foster national unity and live in harmony with others;
(d) To respect the rights, freedoms and legitimate interest of others and generally to refrain from doing acts detrimental to the welfare of other persons;
(e) To work conscientiously in his lawfully chosen occupation;
(f) To protect and preserve public property and expose and combat misuse and waste of public funds and property;
(g) To contribute to the well-being of the community where that citizen lives;
(h) To defend Ghana and render national service when necessary.”
The combined effect of the provisions in articles 4(1), 35(1), (2), (6)(1)(a) and 41, particularly (a), (b), (c) and (h) is a pointer to Ghana as one indivisible and indissoluble sovereign state with complete abhorrence of the so called self-determination and related activities that may break up the nation under the pretence of rights. The corporate being of Ghana with its territorial integrity as a united, harmonious, indivisible and indissoluble sovereign nation is manifestly greater than and superior to the rights, liberties and freedoms of any individual or group of individuals. On examining the relevant provisions of the Constitution, we fail to see how, an existing law which is to protect the independence and territorial integrity of the Republic could be construed as unconstitutional.
Again, it is doubtless that the rights set out particularly in chapter 5 of the Constitution are not absolute. They are subject to the respect of the rights and freedoms of others and for the public interest. Article 12(2) accordingly states:
“(2) Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed, or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.”
In the words of Acquah JSC (as he then was) in MENSIMA VRS ATTORNEY-GENERAL (supra):
“The fundamental human rights and freedoms including that of association enshrined in Chapter 5 of the Constitution, 1992 can certainly not be absolute, otherwise society will be in chaos, as each individual will strive to assert his full right. For as Aristotle stated in The Politics: “Man when perfected is the best of animals, but if he be isolated from law and justice, he is the worst of all.” To secure these rights and freedoms therefore, it is essential that there must be some machinery or safeguard to prevent the exercise of these rights degenerating into licence, and also organize the relations between one individual and another without which life of the individual becomes “solutary, poor, nasty, brutish and short. Thus article 41(d) thereof reinforces the above limitation by postulating that the enjoyment of these rights and freedoms goes along with corresponding duties and obligations which include respect for the rights, freedoms and legitimate interest of others and restraint from doing acts detrimental to the welfare of other persons. In realisation of these limitations, article 21(4) of the Constitution 1992 legitimizes, inter alia, laws which are reasonably necessary to maintain the equilibrium between the competing interests and rights of the individual and those of the State.”
Now let us set out the provisions in article 21(4) of the Constitution which agreeably lends constitutional approval to laws that are reasonably necessary to moderate the rights guaranteed under the Constitution. It provides:
“21. (4) Nothing in, or done under the authority of a law shall be held to be inconsistent with, or in contravention of, this article to the extent that law in question makes provision—
(a) for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally, or class of persons; or
(b) for the imposition of restrictions, by order of a court, on the movement or residence within Ghana of any person either as a result of his having been found guilty of a criminal offence under the laws of Ghana or for the purposes pf ensuring that he appears before a court at a later date for trial for a criminal offence or for proceedings relating to his extradition or lawful removal from Ghana; or
(c) for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally, or any class of persons; or
(d) for the imposition of restrictions on the freedom of entry into Ghana or of movement in Ghana, of a person who is not a citizen of Ghana; or
(e) that is reasonably required for the purpose of safeguarding the people of Ghana against the teaching or propaganda of a doctrine which exhibits or encourages disrespect for the nationhood of Ghana, the national symbols and emblems, or incites hatred against other members of the community;
except in so far as that provision or as the case may be, the thing done under the authority of that law is shown to be reasonably justifiable in terms of the spirit of this Constitution.”
In our constitutional journey, some of the laws that have received the constitutional licence as a mechanism to moderate the legitimate exercise of rights and freedoms, to name a few are the Criminal and other Offences Act (Act 29)(as amended), Public Order Act, 1994 9act 491), Electronic Communications Act, 2008 (Act 775), Immigration Act, 2000 (Act 573), Anti-Terrorism Act, 2008 (Act 762), Vigilantism and Related Ofeences Act, 2019 (Act 999) and the Public Health Act 2012 (Act 851). To the extent that SMCD 20 aims at holding the nation together by criminalizing acts that will potentially strike at the very foundation of the sovereignty and territorial integrity of Ghana in clear breach of other provisions of the Constitution referred to in this speech, it deserves to pass the test of constitutionality.
Admittedly, SMCD 20 appears to go beyond limitation or restriction on rights. It prohibits a crop of organizations and criminalizes their related activities. To criminalize means to make a crime what was otherwise lawful or rightful. It basically outlaws otherwise guaranteed rights and in effect, takes them away. We believe this is the grief of the applicant. He complains of the criminalization which amounts to absolute denial or complete derogation. Of course, there is a patent difference between restriction on rights on the one hand and denial on the other for which we agree with the following statement of Hayfron-Benjamin JSC in NPP VRS IGP [1993-94]2 GLR 459:
“in article 21(4)(c) the power as required to control those situations mentioned therein must be granted by a law which imposes reasonable restrictions on the fundamental freedoms but does not deny the citizen the fundamental freedoms to which he is entitled. In other words, the citizen’s freedoms may be restricted by law on the grounds stated in the Constitution 1992 but cannot be denied. Any such denial will be unconstitutional and void.”
In spite of the implications SMCD 20 bears on the rights of the applicant and his group, we take a serious view of the grave consequence their activities could have on the very sovereignty and territorial integrity of Ghana. And for emphasis, we are talking about a law, which if struck down will pave way for activities that could result in bringing down the sovereignty and territorial integrity of the country. We must adopt an interpretation that keeps the nation as one whole even if rights of certain individuals are affected. We believe it is to deal with such crucial eventualities that elsewhere in the Constitution under articles 31 and 32, emergency powers are exercisable in certain circumstances. We have in this deliberation, adverted our minds to the circumstances under which a state of emergency may be declared. In our considered view, the so-called self-determination activities which the applicant argues as basis to nullify SMCD 20 could have passed for one such circumstance for declaration of a state of emergency and for that, the rights any person under Chapter five of the Constitution would be overridden. Article 31(9) provides:
“(9) The circumstances under which a state of emergency may be declared under this article include a natural disaster and any situation in which any action is taken or is immediately threatened to be taken by any person or body f persons which—
(a) is calculated or likely to deprive the community of the essentials of life; or
(b) renders necessary the taking of measures which are required for securing the public safety, the defence of Ghana and the maintenance of public order and of supplies and services essential in the life of the of the community.
In the final analysis, we resolve the second issue in favour of the Republic. We come to the conclusion that SMCD 20 is not unconstitutional. Its provisions are in tune with the letter and spirit of the Constitution and must continue to stand.
Before we conclude, there is one issue we need to address. This is about the propriety of using international treaty obligation not yet domesticated into municipal law as basis to declare an existing law unconstitutional. The applicant had argued that by virtue of articles 33(5), 40 and 73, treaty obligations have attained constitutional status and can therefore be the basis to declare SMCD 20 unconstitutional. We see the force in the applicant’s argument. We however reject it for the following simple reason. Ghana is a dualist state. As such, international treaties signed on to by the executive ought to be incorporated into our municipal law by a legislative act. Treaties do not have binding force internally until domesticated. The only exception is where the treaty law has assumed the status of customary international law wherefore it shall become applicable as part of the common law of Ghana within the meaning of article 11 of the Constitution. If treaty law were to have automatic application in our courts, we would risk the danger of the executive making incursions into the legislative powers of parliament under article 93(2) of the Constitution. See REPUBLIC VRS HIGH COURT (COMMERCIAL DIVISION) ACCRA, EX PARTE ATTORNEY GENERAL (NML CAPITAL, REPUBLIC OF ARGENTINE INTERESTED PARTIES) [2013-2014] 2 SCGLR 990.
The applicant’s argument that by virtue of articles 33(5), 40 and 73, Ghana’s international human rights obligations have attained a constitutional status is flawed. For, by those provisions read together Ghana is only to recognize and perform its international treaty obligation and to conduct its international affairs in consonance with accepted principles of public international law. The provisions do not of themselves incorporate international treaties signed on to by Ghana into our municipal law and it was not urged upon us that any of the treaties has assumed the character of customary international law to be applied as part of the common law Ghana. In the end, we dismiss the applicant’s case that SMCD 20 was unconstitutional.
When on July 22, we granted the order quashing the ruling of the High Court, we proceeded to admit the applicant and the 2nd and 3rd Interested Parties to bail pending the instant determination, as they had then been convicted and sentenced by the trial Court. By the conclusion we have come to, the conviction and sentence subject to the right of appeal, are proper in law. We shall therefore revoke the bail granted by this Court and order the applicant and the 2nd and 3rd Interested Parties to serve the sentence imposed by the trial Court.
(SGD.) R. ADJEI-FRIMPONG
(JUSTICE OF THE SUPREME COURT)
(SGD.) I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
(SGD.) H. KWOFIE
(JUSTICE OF THE SUPREME COURT)
(SGD.) S. DZAMEFE
(JUSTICE OF THE SUPREME COURT)
(SGD.) G. S. SUURBAAREH
(JUSTICE OF THE SUPREME COURT)
COUNSEL
OLIVER BARKER-VORMAWOR ESQ. FOR THE APPLICANT WITH HIM EDEM TUSAH ESQ.
RICHARD GYAMBIBY (PRINCIPAL STATE ATTORNEY) FOR THE 1ST INTERESTED PARTY WITH HIM PEGGY ESHUN (ASSISTANT STATE ATTORNEY) LED BY WINIFRED SARPONG (CHIEF STATE ATTORNEY).
