BY: DARLINGTON AMOFA, ESQ.*
In thinking about the place of purpose in constitutional interpretation, and particularly the difficult boundary between giving meaning to an authoritative text and giving that text a meaning of one’s own, I am reminded of an ancient injunction in the Book of Deuteronomy:
“Ye shall not add unto the word which I command you, neither shall ye diminish ought from it…”
Deuteronomy 4:2 (KJV)
1. Introduction
Few propositions in constitutional law appear as sensible as the statement that a constitution should be interpreted according to its purpose. A Constitution is not made simply to supply lawyers or judges with words to analyse. It establishes institutions, distributes political authority, protects rights, imposes duties and sets the fundamental terms upon which public power may be exercised. It is therefore difficult to disagree with the proposition that its provisions should be understood in a manner that gives effect to the purposes for which they exist.
The real difficulty begins when one asks a further question: whose purpose?
Is constitutional purpose the intention actually held by those who framed the Constitution, the purpose that can reasonably be gathered from the words which they eventually adopted, the broader purpose revealed by the Constitution when read as a whole, or a purpose capable of being identified from the values of the constitutional order as they exist at the time a court is called upon to interpret it? The differences between these possibilities are not merely theoretical. They concern the source and limits of judicial power because the wider the materials from which constitutional purpose may be constructed, the greater the responsibility placed upon the judge who identifies that purpose and gives it legal effect.*
The Modern Purposive Approach, commonly known as MOPA, has become an important part of this conversation in Ghana. Its attraction is understandable because constitutions are intended to endure, and a document expected to govern successive generations cannot reasonably anticipate every factual circumstance in which its provisions will eventually be invoked. The 1992 Constitution contains concepts such as democracy, freedom, equality, justice, fairness, reasonableness and public interest whose application cannot always be settled by consulting a dictionary. It also creates institutions whose constitutional relationships may not be completely understood by isolating one provision from the rest of the document. A method which requires the interpreter to consider language, context, history, structure and purpose therefore begins from a sensible understanding of the constitutional task.
It would, however, be historically inaccurate to suggest that constitutional interpretation in Ghana discovered purpose through MOPA. Long before the terminology became familiar, Ghanaian courts had rejected an unduly narrow approach to constitutional interpretation. In Tuffour v Attorney General, Sowah JSC famously described a Constitution as a living organism and explained that it embodies the will of a people, reflects their history and carries their hopes and aspirations. That conception of constitutional interpretation did not depend upon MOPA. It arose from an understanding of the special character of a constitution and the need to interpret it broadly enough to make the constitutional arrangement effective.
What Aharon Barak supplied was something more systematic. His theory of purposive interpretation brings together language, purpose and judicial discretion, with purpose itself having subjective and objective dimensions. Subjective purpose concerns the actual intentions, interests and objectives pursued by the authors of the legal text, whereas objective purpose concerns the purposes, interests and values which the legal system attributes to a text of that kind. In constitutional interpretation, objective purpose may therefore include the fundamental values of the constitutional order as understood at the time of interpretation.
It is objective purpose that gives MOPA much of its attraction, but it is also the point at which the theory becomes most difficult.
The attraction is clear enough. A Constitution intended to endure cannot be imprisoned completely within the expectations of the generation which framed it. The framers of the 1992 Constitution could not have predicted every constitutional question that Ghana would confront in 2026, much less those which may arise in 2050 or 2092. New technologies emerge, institutions develop, political practices change and social relationships assume forms which could not have been anticipated with precision. If constitutional meaning were always dependent upon proof of what particular persons expected in 1992, constitutional interpretation would gradually become an exercise in historical reconstruction rather than the interpretation of a living legal instrument.
The difficulty arises because objective purpose requires judgment. Once the inquiry moves from what the framers actually intended to what a reasonable constitutional author should be taken to have intended in the light of the fundamental values of the legal system, the interpreter must identify those values, determine their content and decide the weight to be attached to them. Two judges may agree completely that democracy is a fundamental constitutional value and disagree profoundly about what democracy requires in a particular constitutional setting. They may both accept equality but disagree about the form of equality relevant to the dispute. They may both accept freedom but differ on the point at which institutional regulation becomes an impermissible interference with that freedom.
This is where the debate about MOPA becomes important.
The easiest criticism is that MOPA permits judges to make law. Taken alone, that criticism does not carry the argument very far because interpretation has never been entirely mechanical. Even a judge committed to a strongly textual approach must decide what constitutional words mean in their context, how provisions which appear to point in different directions should be reconciled and which of several linguistically possible meanings best fits the document. Barak himself makes no attempt to disguise this reality. Judicial discretion is expressly recognised within his theory, and he argues that interpretive approaches which claim to eliminate discretion frequently exercise it without acknowledging that they are doing so.
The stronger objection is therefore not that MOPA recognises judicial discretion. The stronger objection asks whether the method gives us a sufficiently clear basis for distinguishing the purpose of the Constitution from a purpose preferred by the judge.
That distinction is fundamental because a judge may sincerely consider one interpretation more democratic, another may regard a different interpretation as giving greater protection to liberty, and a third may place greater weight on institutional autonomy or equality. Each may speak in the language of constitutional values and each may claim to be giving effect to the spirit or objective purpose of the Constitution. The language of purpose, by itself, does not tell us which interpretation the Constitution has actually authorised.
The problem is therefore not solved by directing judges to find the purpose of the Constitution. Such a direction merely moves the difficulty to the question of how that purpose is to be identified and what legal materials may properly be used to establish it.
This article takes that problem seriously without arguing for the abandonment of purposive constitutional interpretation. A return to strict literalism would simply replace one difficulty with another. Neither does the argument proceed on the assumption that every controversial judgment reached through purposive reasoning demonstrates a defect in MOPA. An interpretive method should not be judged merely by whether it occasionally produces conclusions with which a reader disagrees.
The argument advanced here is quite narrower. Purpose is indispensable to constitutional interpretation, but purpose must remain an instrument for understanding the Constitution rather than become an independent source of constitutional authority. The principal difficulty in the Ghanaian use of MOPA lies not in its recognition of purpose or judicial discretion, but in the absence of a sufficiently clear discipline for identifying constitutional purpose, relating that purpose to constitutional language, dealing openly with competing constitutional values and explaining why an asserted purpose makes one result constitutionally necessary rather than merely attractive.
This qualification is important because Barak’s own theory is more restrained than some criticisms of MOPA acknowledge. He does not suggest that a judge may identify a desirable constitutional objective and compel the text to accommodate it. His starting point is the opposite. In his formulation, “semantic meaning sets the limits of interpretation”. Purpose operates among meanings which the language is capable of bearing; it does not give the interpreter authority to create another text. He makes the same point elsewhere by insisting that the purpose ultimately attributed to a legal text must possess at least a minimum semantic foundation in the language used.
The harder question is whether that semantic limitation, important as it is, provides sufficient restraint in constitutional adjudication. The range of meanings which constitutional language can reasonably bear must itself be determined by the interpreter. The relevant objective values of the legal system must also be identified by the interpreter. The level of abstraction at which a constitutional purpose is expressed, and the relative weight to be given to subjective and objective purposes when they point in different directions, similarly require judicial judgment. Barak does not conceal these difficulties. He accepts that discretion may arise when judges identify the values forming objective purpose, balance competing considerations and determine the purpose which should ultimately prevail.
The important question for Ghana’s constitutional law is therefore not whether judicial discretion exists. It plainly does. The more important question is how that discretion should be disciplined within a constitutional order in which the Constitution, rather than the judiciary, remains supreme.
The recent decision of the Supreme Court in Frimpong Boateng and Others v New Patriotic Party and Others brings this question into particularly sharp focus. The Court was called upon to interpret article 55(5) of the Constitution, which requires the internal organisation of political parties to conform to democratic principles. In doing so, the majority expressly accepted that a delegate system is not inherently undemocratic and that democracy may legitimately operate through both direct and representative arrangements. The Court nevertheless concluded, after reading article 55(5) within the broader constitutional framework, that political parties must allow all their registered members in good standing to vote directly in the selection of presidential and parliamentary candidates.
One passage in the judgment is especially important to the present discussion. The majority observed that constitutions are not textbooks in political philosophy and that the Court’s responsibility was not to decide which model of democracy philosophers or political scientists regarded as most attractive. Its duty, the Court said, was to discover the democratic vision which the framers had embedded in the constitutional text.
The statement is compelling because it captures the very distinction which constitutional interpretation must preserve. The difficulty lies in determining how the Court knows when it has discovered that vision rather than selected, from among several constitutionally plausible visions, the one which it considers more desirable.
The decision therefore provides an important setting in which to examine the strengths and limits of purposive constitutional interpretation in Ghana. It also demonstrates why the question posed by this article is no longer merely theoretical.
Who gives the Constitution its purpose?
The answer cannot be the framers alone because a constitution intended to endure cannot remain completely tied to their expectations. It cannot be contemporary judges alone because interpretation is not a substitute for constitutional amendment. It cannot be the bare constitutional text considered without history, structure and context because broad concepts such as democracy, freedom, dignity and reasonableness acquire legal meaning within a constitutional setting.
The answer must be found somewhere in the relationship between these considerations, and finding that relationship is the real challenge of MOPA.
2. Purpose Did Not Begin with MOPA
One difficulty in the present debate is that MOPA is sometimes made to carry responsibility for virtually every form of purposive reasoning. That approach overlooks the much older history of purpose in legal interpretation.
Judges were concerned with legislative purpose long before anyone spoke of a Modern Purposive Approach. The common law itself developed techniques which permitted courts to look beyond the bare grammatical meaning of statutory words. The mischief rule, classically associated with Heydon’s Case, required attention to the defect in the previous law and the remedy which the legislature intended to provide. The golden rule similarly recognised that an apparently ordinary meaning could not always be maintained where it produced absurdity or inconsistency.
Purpose is therefore not MOPA’s invention.
This point matters because the debate cannot sensibly be reduced to a choice between judges who read constitutional words and judges who consider constitutional purpose. Language is normally understood partly through the circumstances in which it is used and the function it is intended to perform. Constitutional language is no exception.
An ordinary instruction that “no vehicles are permitted in the park” appears straightforward until an ambulance enters the park to assist a person who has collapsed. A dictionary may establish beyond argument that an ambulance is a vehicle, but the dictionary alone cannot determine whether the prohibition was intended to prevent emergency medical access. Once the interpreter begins considering the reason for the rule, purpose has already entered the exercise.
The difficulty becomes more pronounced in constitutional law because constitutions frequently employ broad concepts whose legal content cannot be obtained from dictionaries alone. The 1992 Constitution speaks of democratic principles, public interest, fairness, freedom, justice and reasonableness. Even apparently precise provisions may become difficult when they interact with other provisions or operate within institutional arrangements which must be understood as a whole.
Our courts recognised this long before Date Bah JSC began speaking expressly in the language of subjective and objective purpose.
2.1 Tuffour and the Older Ghanaian Tradition
Tuffour v Attorney General remains the natural starting point because Sowah JSC rejected an approach which treated the Constitution as though it were merely another Act of Parliament. His description of the Constitution as a living organism is familiar, but the deeper importance of the judgment lies in the conception of constitutional authority which supports that metaphor. The Constitution was understood as embodying the will of a people, reflecting their history and containing their aspirations. Its provisions therefore had to be interpreted broadly enough to permit the constitutional order to function in changing circumstances.
There is already a substantial degree of purposive reasoning in that approach. The interpreter is not asked simply what a constitutional sentence meant in isolation when it was written. The document must be understood against the history of the people who adopted it, the principles which animate it and the political order which it creates.
MOPA did not introduce that intellectual instinct into Ghanaian constitutional law. The case of Tuffour, had already rejected narrow constitutional textualism. It had already accepted the relevance of constitutional history and constitutional character, and it had already recognised that an enduring Constitution must be interpreted with sufficient breadth to remain effective.
What the case of Tuffour did not provide was a detailed account of how the interpreter should move from constitutional language to constitutional spirit, how the content of that spirit should be established, or what should happen when an asserted constitutional purpose appears to pull the interpreter beyond what the words readily support.
Those questions became more visible under the 1992 Constitution.
3. From the case of Tuffour to Date-Bah, JSC: The Development of Ghanaian Purposivism
The development of purposive interpretation in Ghana is better understood as an evolution than as a sudden methodological revolution. The 31st December Case is particularly important because it reveals, at an early stage of the Fourth Republic, the same tension which now lies beneath much of the discussion about MOPA.
The case concerned the use of public resources to commemorate 31 December 1981, the date upon which the constitutionally established government of the Third Republic was overthrown. No provision of the Constitution simply stated that the State could not commemorate that date. The constitutional answer therefore had to be constructed from several provisions and from the character of the constitutional order which those provisions collectively established.
For Francois JSC, the spirit of the Constitution was indispensable to that exercise. He described the Constitution as the “outpouring of the soul of the nation” and treated its democratic character as something which could not be separated from its written provisions. In the historical circumstances of the 1992 Constitution, the attraction of that reasoning is easy to understand. The Constitution places sovereignty in the people, creates democratic institutions, provides for elected government and emerged from a political history in which constitutional rule had repeatedly been interrupted . To interpret that document without reference to its democratic character would seem artificial.
The case, however, also contains an important expression of caution. Archer CJ was uncomfortable with an undefined appeal to constitutional spirit and preferred the language of the “letter and intendment” of the Constitution. His concern was not that the Constitution should be read without purpose. It was that an elusive concept of constitutional spirit might become capable of carrying the interpreter wherever he wished to go.
That disagreement deserves more attention than it sometimes receives because it anticipated the central difficulty now associated with objective purpose. Francois JSC recognised that the Constitution could not be understood merely as a collection of isolated sentences. Archer CJ recognised that once constitutional meaning is permitted to rest upon a concept such as spirit, a court requires some means of demonstrating that the spirit it invokes belongs to the Constitution rather than to the interpreter.
More than three decades later, the vocabulary has changed, but the problem remains familiar. The broad approach continued in later cases. In New Patriotic Party v Attorney General, the Supreme Court reiterated that constitutional interpretation differs from the interpretation of an ordinary statute and that the Constitution should receive a broad and liberal construction capable of allowing it to operate within the changing social and political circumstances of the nation. This approach was expressly connected to the tradition established in the case of Tuffour.
By this stage, it was already clear that Ghanaian constitutional interpretation could not fairly be described as literalist. Constitutional provisions were to be read together, the structure of the document mattered and broad constitutional purposes could assist in resolving ambiguity.
The more interesting question is therefore what Date Bah added to this tradition.
3.1 Subjective and Objective Purpose
The importance of Date-Bah’s contribution lies principally in the distinction between subjective and objective purpose. In Asare v Attorney General, the Supreme Court discussed subjective purpose as the actual intention of those responsible for the legal text, whereas objective purpose concerns what a hypothetical reasonable author would have intended having regard to the legal system, the history of the society and its fundamental values. The distinction drew heavily from Barak and gave Ghanaian purposivism a more developed theoretical vocabulary.
The significance of the distinction should not be understated because it changed the nature of the inquiry. Purpose could no longer be understood solely as a historical fact which a court attempted to discover. Purpose could also be attributed to the constitutional text by reference to the character and values of the legal order.
Subjective purpose asks what the framers were attempting to accomplish. Objective purpose allows the court to ask what the provision, considered within the constitutional order, should reasonably be taken to accomplish.
This makes it possible for the Constitution to speak to circumstances which its framers did not contemplate, but it also increases the role of the interpreter because objective purpose cannot simply be recovered from historical records. It must be constructed through legal reasoning.
The fact that the judge participates in that construction does not make the exercise illegitimate. It does, however, make the need for discipline more important. A court which invokes democracy, dignity, equality or justice as part of objective purpose should be able to demonstrate where the value is located within the Constitution, why it is relevant to the particular provision and why it produces the constitutional consequence attributed to it. Without such discipline, objective purpose can gradually become difficult to distinguish from judicial preference expressed in constitutional language.
3.2 The case of Ghana Lotto Operators Association and proposition of “the Living Constitution’’
The decision in Ghana Lotto Operators Association v National Lottery Authority provides one of the clearest illustrations of Date-Bah JSC’s approach. The Court was required to consider, among other matters, the legal status and justiciability of the Directive Principles of State Policy. The historical materials were significant because the Committee of Experts had contemplated language expressly indicating that the Directive Principles would not themselves be legally enforceable, but that language did not appear in the Constitution eventually adopted.
The Court considered the historical intention relevant but refused to treat it as conclusive. Date-Bah JSC explained that constitutional interpretation could also take account of objective purpose and reiterated the understanding of the Constitution as a living instrument capable of responding to changing national circumstances. The subjective intention of the framers therefore remained important without becoming an absolute command governing every subsequent interpretation.
There is considerable force in that approach. If constitutional meaning were permanently limited to the precise factual expectations of those who framed the Constitution, broad constitutional guarantees would gradually become incapable of responding to new circumstances. At the same time, the case of Ghana Lotto’s also contains an important limitation which should not be overlooked. Date-Bah JSC spoke of the need for a semantic basis in the constitutional language. Objective purpose was therefore not treated as a free standing source of judicial authority. The words still had to be capable of bearing the interpretation which the Court placed upon them.
This qualification brings the our approach closer to Barak’s own theory, under which language establishes the outer boundary of legitimate interpretation and purpose operates within that boundary. The difficult question is how effective that boundary becomes when constitutional language is deliberately broad.
Expressions such as “democratic principles” demonstrate the problem particularly well. Direct participation can plainly be democratic, but representative participation can also be democratic. Delegation is not foreign to democratic government. If the language is capable of accommodating all these possibilities, semantic meaning alone does not tell us which form the Constitution requires.
At that point, purpose begins to carry much of the interpretive burden. It is precisely there that the need for discipline becomes most acute.
4. The Real Problem with MOPA: Purpose Without Sufficient Discipline
The easiest criticism of MOPA is that it gives judges too much power, but that criticism becomes more useful when stated with greater precision. Judges already possess interpretive power, and no serious theory can eliminate judgment from constitutional adjudication. Difficult constitutional disputes arise precisely because language, history, structure and precedent do not always produce an obvious answer.
Barak openly recognises this reality. His account of purposive interpretation involves language, purpose and judicial discretion, with language establishing possible meanings and purpose assisting the interpreter in choosing among them. Judicial discretion becomes relevant where the recognised legal materials do not produce one unavoidable conclusion.
MOPA should therefore not be criticised merely for admitting the existence of something which other interpretive theories may exercise without acknowledgement. The more serious difficulty lies in the number and importance of the choices which must be made before the court arrives at the final constitutional meaning. The semantic range of the words must be determined, subjective purpose must be identified, objective purpose must be constructed, relevant constitutional values must be selected, competing purposes must be reconciled and the appropriate level of generality at which the constitutional purpose should be expressed must be determined. Where these materials continue to support more than one interpretation, judicial discretion completes the process.
Each of these decisions may be perfectly defensible. Taken together, however, they place considerable responsibility in the hands of the interpreter. The relevant question is therefore not whether judges should exercise discretion, but what prevents that discretion from becoming constitutional preference.
4.1 The Importance and Limits of Semantic Meaning
One of the strongest answers available to defenders of MOPA is Barak’s insistence that the language remains the boundary of interpretation. An interpreter may use materials outside the text to identify purpose, but the legal meaning ultimately adopted must remain within the range which the language is capable of bearing. This limitation is substantial because it means that MOPA, properly understood, does not authorise a judge to begin with a desirable constitutional result and simply force the text to accommodate it. Purpose chooses among available meanings; it does not manufacture another constitutional text.
The difficulty is that semantic boundaries must themselves be interpreted. Constitutional provisions are often framed at a high level of generality precisely because they are expected to operate across circumstances which cannot be specified in advance. Where the constitutional language is broad, the range of linguistically available meanings may itself be broad.This is why semantic constraint, although essential, cannot provide the entire answer. The more open the language, the greater the work performed by purpose, and the greater the work performed by purpose, the more important it becomes to explain how that purpose was identified.
4.2 Objective Purpose and the Problem of Constitutional Values
Objective purpose presents the difficulty most clearly because constitutional values do not ordinarily arrive before the Court already arranged in an order of priority.
Democracy may support participation, but freedom of association may support institutional autonomy. Equality may favour similar treatment, but legitimate institutional differences may justify distinctions. Accountability may support greater supervision, whereas institutional independence may require protection from external control. Liberty may favour individual choice, but the protection of others may justify regulation.
These values do not cease to be constitutional simply because they point in different directions. The task of identifying objective purpose therefore frequently involves a choice between competing constitutional commitments. Barak acknowledges this and accepts that judicial discretion may become necessary when such values conflict.
That acknowledgement should have an important consequence for constitutional judgment writing. Where competing constitutional values exist, the judgment should reveal the competition rather than present the selected value as though it were the only constitutional consideration in the case. If democracy and associational autonomy point in different directions, both should be identified. If historical intention supports one interpretation and a contemporary understanding of equality supports another, that tension should be confronted. If the Court chooses one conception of democracy over another, the reasons for that choice should form part of the constitutional justification.
Objective purpose may be constructed through principled reasoning, but a purpose which has been constructed should not be presented as though it simply announced itself from the Constitution.
4.3 The Problem of Abstraction
There is a related problem concerning the level of abstraction at which constitutional purpose is expressed.
A constitutional provision may have a relatively narrow purpose connected with the regulation of a particular institution. The same provision may also be said, at a higher level, to prevent abuse of public authority, and at a still higher level to promote accountable democratic government. Each description may contain an element of truth, but the broader the purpose becomes, the greater the interpretive work it can perform.
A court may therefore begin with a particular constitutional provision, move from that provision towards a broad constitutional value, and then use that broad value to determine the meaning of the provision from which the exercise began. The reasoning can become circular if the movement between text and value is not carefully explained.
The solution is not to prevent courts from reasoning from constitutional values. Constitutional adjudication could hardly function on that basis. The solution is to require the court to show why the particular value has been stated at that level of abstraction and how it leads back to the constitutional words without displacing them.
A court which says that an interpretation promotes democracy has therefore not completed the constitutional inquiry. It must still explain what conception of democracy is relevant, why that conception fits the provision under consideration, what competing democratic arrangements remain possible and whether the Constitution requires the Court’s preferred arrangement rather than merely permitting it.
4.4 Constitutional Attractiveness Is Not Constitutional Necessity
This distinction may be the most important in the entire debate. Courts frequently encounter arrangements which appear capable of improvement. One interpretation may widen participation, another may strengthen accountability, another may reduce opportunities for corruption, and another may produce a more efficient institutional arrangement. These considerations may properly inform constitutional reasoning, but the judicial task is not simply to select the arrangement which appears to produce the best public policy.
A political arrangement may be more participatory without being constitutionally compulsory. A wider institutional power may make an agency more effective without that power having been conferred by the Constitution. A procedure may appear unfair without every alternative procedure becoming constitutionally required. Constitutional desirability and constitutional necessity must therefore remain distinct.
This is particularly important under MOPA because objective purpose can make the movement between the two appear deceptively easy. Once a court identifies a constitutional value such as democracy or accountability, a political arrangement which advances that value may begin to look constitutionally required. The missing question is whether the Constitution itself has made that final choice.
The distinction may be expressed another way. Courts must distinguish between what the Constitution permits, what its values may be said to favour and what it actually commands. These categories frequently overlap, but they are not identical.
5. The Constitution Does Not Have Only One Purpose
References to “the purpose of the Constitution” may also create the impression that the Constitution pursues one overarching objective capable of resolving every difficult dispute. The document is far more complicated.
The Constitution promotes democracy but also limits majority power. It protects liberty and permits regulation. It distributes governmental authority and simultaneously restrains its exercise. It protects institutional independence and demands public accountability. It recognises individual rights while also acknowledging collective interests and public responsibilities.
These commitments can coexist precisely because a constitution performs several functions at once.
This means that a court cannot ordinarily resolve a difficult constitutional dispute simply by identifying one value and asking which interpretation advances it most effectively. The question must also be whether another constitutional commitment pulls in a different direction.
This is another reason why constitutional purpose cannot sensibly be treated as something which exists entirely outside judicial choice. Where two legitimate constitutional purposes conflict, the interpreter must decide their relative weight in the circumstances of the case.
The legitimacy of that exercise depends heavily upon transparency. A court should not hide the competition between constitutional values. The competing considerations should be exposed and the reasons for preferring one in the particular constitutional setting should be explained.
The objective is not to eliminate judicial choice, which is impossible, but to make that choice constitutionally accountable.
6. Towards an Interpretive Discipline
Criticising an interpretive method is considerably easier than proposing a workable alternative, and literalism provides no satisfactory escape from the difficulties already identified. Constitutional language is sometimes deliberately broad, history may assist without deciding the case, the intentions of the framers may be divided or incomplete, and modern disputes may arise in circumstances which were never contemplated when the Constitution was adopted.
The answer should therefore not be to remove purpose from constitutional interpretation. The better response is to discipline its use.
What Ghana’s constitutional law requires may not be another grand theory carrying a new name. There is already enough terminology surrounding constitutional interpretation. The greater need is for a clearer method of justification which allows the Constitution to develop through interpretation without allowing constitutional development to become amendment by judicial reasoning.
The starting proposition is that purpose may explain, resolve and develop constitutional meaning, but it should not manufacture constitutional meaning.
The distinction is necessarily one of degree in difficult cases, but that does not make it useless.
6.1 Constitutional Language Must Remain the Beginning
The first discipline should be textual, although textual discipline should not be confused with literalism. Before determining what purpose a provision should serve, a court should identify the meanings which the constitutional language is reasonably capable of bearing. This requirement follows from Barak’s own insistence upon semantic limits and helps preserve the correct direction of constitutional reasoning.
The danger arises when the interpretive exercise begins with a result. A court identifies a constitutional value, concludes that a particular outcome would advance that value and then searches the constitutional language for a means of accommodating the outcome. In that form, purpose begins to lead language.
The more disciplined approach begins by asking what meanings the constitutional words can reasonably carry, what the surrounding provisions indicate, how the provision fits within the constitutional structure and which of the available meanings best gives effect to the purpose which can properly be identified from those materials.
The difference is important because, in the first approach, purpose searches for constitutional language capable of supporting a result, whereas in the second, purpose assists the court to choose among meanings which the Constitution has already made available.
6.2 Context Should Precede High Abstraction
Constitutional context provides another important restraint. A provision belongs to a chapter, interacts with neighbouring provisions and forms part of a wider constitutional arrangement. The immediate constitutional context may therefore supply a more reliable indication of meaning than an early appeal to broad concepts such as democracy, justice or dignity.
The Ghanaian constitutional tradition already supports this understanding. The case of Tuffour rejected a narrower interpretation because a constitution embodies an entire political arrangement, and later cases have repeatedly insisted that constitutional provisions should not be read in isolation.
Context becomes especially important because abstract constitutional values are capable of supporting several conclusions. Democracy may support direct participation and representative institutions. Equality may support uniform treatment and, in another setting, constitutionally justified differentiation. Freedom may protect individual choice while also permitting rules necessary for the freedom of others.
The court should therefore resist climbing too quickly from a specific constitutional phrase to the highest level of constitutional abstraction. Sometimes the answer is found much closer to the text.
6.3 Constitutional Structure Must Restrain Constitutional Purpose
The Constitution does not merely announce values. It allocates power.
It establishes the Legislature, Executive and Judiciary, creates independent constitutional bodies, assigns functions to institutions and prescribes procedures through which particular powers may be exercised. Those arrangements are not technical inconveniences standing in the way of constitutional purpose. They are themselves constitutional choices.
This point is particularly important when purposive reasoning is used to justify institutional power. Accountability may be a constitutional value, but it does not follow that every institution may exercise whatever power would increase accountability. Participation may be fundamental to democracy, but it does not follow that every decision within every constitutionally recognised organisation must be taken directly by all persons affected. Efficiency may be desirable, but efficiency does not itself create constitutional authority.
Purpose must therefore respect constitutional structure because one constitutional value cannot be used casually to erase another constitutional choice. The reasoning in Professor Stephen Kwaku Asare v Attorney General illustrates the broader problem. The Court considered the constitutional amendment process and the extent to which incidental authority could accompany expressly granted constitutional powers. A Constitution cannot reasonably state every administrative step necessary for the exercise of an expressly conferred function, and some implied authority may therefore be unavoidable. But implied power must remain connected to the power which the Constitution actually grants. It cannot become an opportunity to rearrange the constitutional distribution of authority in the name of convenience or effectiveness.
The wider lesson is that purposive interpretation may make constitutional powers workable, but it should not redistribute them.
6.4 History Should Inform Without Governing Completely
Historical materials also require a balanced place in the interpretive process. MOPA is right to reject the proposition that every constitutional dispute must be resolved according to the precise expectations of those who framed the Constitution. At the same time, constitutional history cannot become irrelevant merely because contemporary values point in another direction.
History may reveal the problem a provision was designed to address, explain the choice of particular words, identify proposals which were considered and rejected, or illuminate an institutional fear against which the constitutional safeguard was directed. Such evidence is part of the legal history of the provision and should not disappear from the analysis without explanation. The Ghana Lotto case itself demonstrates the point. The Court considered the Committee of Experts’ treatment of the Directive Principles and found the omission of an express restriction from the final constitutional text significant. History informed the analysis without controlling it completely.
The important discipline is transparency. Where strong evidence of subjective purpose exists but the Court concludes that objective purpose should prevail, the judgment should acknowledge the tension and explain why. The conflict should form part of the reasoning rather than disappear behind a general reference to the Constitution as a living document.
6.5 Objective Purpose Must Be Demonstrated Rather Than Announced
Perhaps the most important discipline concerns the identification of objective purpose itself. Courts sometimes refer to the spirit, values or objectives of the Constitution as though those concepts were self-proving. With great respect, they are not.
Where a court relies upon an objective constitutional purpose, it should identify the constitutional materials from which that purpose has been derived. The source may be the Preamble, a particular provision, several related provisions, the institutional structure, constitutional history or a settled body of constitutional decisions. The precise source will vary according to the case.
What should not be sufficient is the bare assertion that a particular result promotes democracy, justice, equality or accountability. Democracy provides an obvious illustration because the concept can accommodate majority rule and minority protection, direct participation and representative decision making, popular authority and constitutional limitations upon popular power. Invoking democracy therefore does not settle a constitutional dispute.
A court relying on democracy as an objective purpose must explain the conception of democracy which the Constitution makes relevant to the provision under consideration and why that conception produces the particular constitutional consequence claimed for it. There must be a bridge between the value and the rule.
6.6 Constitutional Permission, Preference and Command
Another useful discipline is to recognise that a Constitution may sometimes permit more than one answer. Constitutions frequently establish principles while leaving political institutions considerable freedom concerning how those principles should be implemented. A constitutional requirement of democracy does not necessarily prescribe every democratic procedure. A constitutional requirement of fairness does not automatically constitutionalise the fairest procedure a court can imagine. A constitutional commitment to accountability does not necessarily dictate one institutional arrangement.
The distinction between constitutional permission, constitutional preference and constitutional command therefore deserves a more prominent place in constitutional reasoning. Where several political arrangements satisfy the Constitution, the selection of the best arrangement may properly belong to Parliament, political institutions or the people themselves. A court does not abdicate its constitutional responsibility by recognising such a space. It respects the distinction between judicial interpretation and political choice.
This distinction becomes particularly important when considering the Supreme Court’s recent treatment of article 55(5).
7. Frimpong Boateng and the Search for the Constitution’s Democratic Purpose
The Supreme Court’s decision in Frimpong Boateng and Others v New Patriotic Party and Others offers a rare opportunity to examine these questions in a concrete setting because the interpretive difficulty in the case is unusually clear.
Article 55(5) provides “that the internal organisation of a political party shall conform to democratic principles and that its actions and purposes shall not contravene or be inconsistent with the Constitution or any other law”. The plaintiffs challenged the systems through which political parties selected presidential and parliamentary candidates by electoral colleges consisting of defined categories of delegates rather than through direct participation by every registered party member in good standing.
The majority ultimately held that the impugned arrangements were inconsistent with the Constitution and ordered registered political parties, within one year, to establish systems under which all registered members in good standing would be entitled to vote directly in the selection of presidential and parliamentary candidates. For present purposes, the significance of the judgment lies less in that order than in the reasoning through which the Court arrived at it.
7.1 A Concession Which Makes the Constitutional Question Harder
The majority began its substantive discussion of democracy with a concession of considerable importance. It expressly rejected the proposition that a delegate system is inherently undemocratic. Democracies, the Court recognised, operate through different institutional arrangements, some involving direct participation and others allowing citizens to act through mediated forms of representation. The Court went so far as to observe that neither model is inherently superior and that it would be a mistake to regard a delegate system as contrary to democratic principles merely because it does not adopt the elementary conception of one person, one vote.
That concession fundamentally shapes the constitutional question. Had the Court concluded that delegation was inherently undemocratic, the route to its ultimate decision would have been relatively straightforward. Article 55(5) requires democratic principles; the delegate system would have been classified as undemocratic; and the constitutional consequence would have followed.
The Court deliberately rejected that route. The issue therefore became whether Ghana’s Constitution, despite recognising more than one arrangement as democratic, had chosen one of those democratic arrangements as constitutionally compulsory for the selection of political party candidates.
The majority put the question in particularly important language. It observed that constitutions do not exist to settle every debate in political philosophy and that its responsibility was not to determine which democratic model political scientists or philosophers considered most attractive. Its responsibility was to discover the democratic vision which the framers had embedded in the constitutional text.
The formulation is important because it expressly recognises the distinction between a desirable political arrangement and a constitutionally required arrangement. The difficult question is whether the reasoning which follows maintains that distinction.
7.2 From Article 55(5) to the Wider Constitution
The majority correctly recognised that the expression “democratic principles” could not be interpreted satisfactorily by reading article 55(5) in isolation. It therefore turned to the broader constitutional arrangement, including the Preamble, article 1 on popular sovereignty, article 35 on participation in decision making, article 42 on the right to vote and article 63 on the election of the President. From these provisions, the Court identified a constitutional pattern which places political authority ultimately in the people and gives considerable importance to direct participation in the selection of those who exercise public power.
There is nothing inherently objectionable about this method. Article 55(5) deliberately employs a broad constitutional expression, and it would be artificial to interpret democratic principles without reference to the democratic order created by the rest of the Constitution. The difficulty lies in the constitutional conclusion drawn from that wider context. The provisions relied upon demonstrate beyond serious argument that direct political participation occupies an important place in Ghana’s constitutional democracy. Article 42 protects the right of qualified citizens to vote in public elections, and article 63 expressly provides for the election of the President through universal adult suffrage. The Constitution therefore knows how to prescribe direct voting when it intends to do so.
Article 55(5), however, does not provide that presidential and parliamentary candidates of political parties shall be selected through universal participation of all party members. It requires internal organisation to conform to democratic principles. That difference in language cannot by itself settle the case, but it makes the interpretive burden more demanding. If, as the Court accepts, representative arrangements can satisfy democratic principles, the Court must explain why the democratic standard in article 55(5) incorporates the particular form of direct participation expressly required in other constitutional settings.
The majority’s answer is found in what it considers the wider constitutional preference for the dispersion of political power among those from whom political authority ultimately derives. That reasoning makes direct participation strongly consistent with the constitutional scheme.
The harder step is demonstrating that the same scheme makes every competing democratic method unconstitutional. The distinction is the difference between constitutional preference and constitutional command.
7.3 Political Parties Are Not Ordinary Private Associations
The majority’s reasoning acquires considerable strength when it turns to the constitutional position occupied by political parties. Political parties are voluntary associations, but their constitutional significance extends far beyond that of ordinary private organisations. They provide the principal institutional route through which candidates are presented for presidential and parliamentary office and consequently occupy an important position in the organisation of public political power. Article 55 itself subjects political parties to constitutional requirements concerning their national character, organisation, accounts and internal democratic arrangements.
The argument from freedom of association therefore cannot determine the case by itself. The Constitution has already subjected the internal organisation of political parties to a democratic standard. The real question remains what that standard requires.
One of the opinions in the case of Frimpong Boateng develops an important distinction in responding to the argument from representative government. It accepts that representative government is democratic and that delegation is not inherently unconstitutional, but questions whether all persons who participate in an electoral college can genuinely be described as representatives of ordinary party members. Where persons acquire decisive voting rights because of an office which they hold, previously held or to which they were appointed, the relationship between those persons and the members whom they are said to represent becomes more difficult to establish.
This reasoning is significant because it identifies a possible constitutional objection narrower than the proposition that every member must vote directly. Article 55(5) might, for example, require that an internal representative arrangement provide genuine democratic representation, accountability and meaningful participation without necessarily requiring every political party decision to be taken directly by every member. Such an interpretation would distinguish between a genuine delegate system and a privileged electoral college.
The distinction matters because the majority’s final order goes further. It does not merely require political parties to ensure that delegates are genuinely elected by and accountable to ordinary members. It requires direct voting by all registered members in good standing for presidential and parliamentary candidates. The constitutional justification for that additional step therefore remains central to the case.
7.4 Money Politics and Constitutional Meaning
The majority also considered the practical operation of delegate systems within Ghanaian politics and referred to research concerning vote buying and the influence of money in party contests. The reasoning was that concentrating decisive electoral power within a comparatively small and identifiable group increases the value of each delegate’s vote and makes targeted inducement easier, whereas a broader electorate disperses political power and makes electoral outcomes more difficult to influence through a relatively small number of transactions.
The concern is serious and should not be dismissed as irrelevant to constitutional adjudication. Constitutions operate in real societies, and a court interpreting political institutions need not pretend that it is unaware of the manner in which those institutions function in practice. The important question is the role which those practical considerations should perform in interpretation.
Evidence that one electoral arrangement is more vulnerable to vote buying may demonstrate a powerful reason for political reform. It may support legislation, changes to party constitutions or a broader national discussion about the organisation of internal party democracy. The constitutional question is whether that practical disadvantage also establishes that the arrangement violates article 55(5). The majority itself recognises that opening the process to every party member will not eliminate money politics. Its argument is instead comparative: a wider electorate disperses power and makes targeted inducement more difficult.
This is persuasive as an argument about institutional design. Its use as an argument about constitutional necessity requires another step. If both direct and representative systems are capable of being democratic, and if one is considered less susceptible to a particular political vice, the conclusion that the second is preferable does not automatically establish that the first has become unconstitutional.
The Court must still connect the practical defect to the constitutional standard and, this is where the distinction between constitutional interpretation and constitutional improvement becomes particularly important. A court may properly consider consequences when choosing among interpretations, but consequences should not become an independent source of constitutional meaning. Otherwise, the Constitution may gradually come to require whatever institutional arrangement judges consider most capable of addressing a contemporary political problem. The difficulty is not peculiar to the case of Frimpong Boateng. It is inherent in any form of constitutional reasoning which gives substantial weight to objective purpose.
7.5 Applying the Majority’s Own Standard
The fairest way to examine the decision is to take seriously the majority’s own statement that the Court was not selecting the most attractive theory of democracy but discovering the democratic vision embedded in the constitutional text.
That statement establishes a demanding standard for the reasoning. It means that the decisive question cannot be whether direct primaries would increase participation because they plainly would. It cannot simply be whether they may reduce some opportunities for targeted vote buying because they may. It cannot also be whether direct participation fits comfortably within the Constitution’s commitment to popular sovereignty because it plainly does.
The decisive constitutional question is whether article 55(5), read within the entire constitutional structure, excludes a genuinely representative method of candidate selection and requires direct voting by every member in good standing. The distinction is narrow but profound.
If direct primaries are constitutionally permissible, political parties remain free to adopt them. If broad participation represents a constitutional value, that value may properly influence legislation, political reform and party organisation. If article 55(5) constitutionally requires direct primaries, every competing system falling short of that requirement becomes constitutionally invalid.
Moving from the first two propositions to the third therefore requires more than demonstrating that direct participation is desirable. It requires demonstrating that the Constitution itself has made the choice.
7.6 The Strongest Defence of the Decision
A balanced analysis must also recognise that there is a serious answer in defence of the majority’s approach. Article 55(5) is not a detailed procedural provision. The framers deliberately chose the broad expression “democratic principles”, and the use of such language necessarily leaves courts with some responsibility for developing its legal content. Political parties also occupy a special constitutional position because their internal decisions are closely connected to the exercise of public political power. The Constitution expressly subjects them to standards which do not apply to ordinary private associations.
Seen from that perspective, the majority can be understood not as inventing a new constitutional rule but as giving concrete content to a constitutional standard whose language necessarily requires judicial elaboration. The fact that delegation may be democratic in general does not conclusively determine whether a particular delegate arrangement satisfies the constitutional standard applicable to Ghanaian political parties. The Court was therefore entitled to examine the Constitution as a whole, the public function of political parties, the degree of participation afforded to ordinary members and the practical effect of concentrating decisive electoral power in a comparatively small group.
This is a serious argument and it prevents any fair analysis of the case of Frimpong Boateng from reducing the decision to a simple allegation of judicial legislation. The remaining difficulty becomes narrower. Even accepting all those propositions, does the reasoning establish that universal direct participation is constitutionally mandatory, or does it establish that the particular delegate arrangements challenged before the Court were insufficiently democratic?
The difference between those questions is important because the second conclusion does not necessarily produce the first. That is precisely the kind of distinction which interpretive discipline requires courts to confront.
8. What Frimpong Boateng Reveals About MOPA
The importance of Frimpong Boateng extends beyond political party primaries because it illustrates both the usefulness and the difficulty of purposive constitutional interpretation.
The usefulness is obvious. Article 55(5) cannot meaningfully be applied without giving content to the expression democratic principles. The Court must look beyond the two words themselves, consider the Constitution as a whole and determine the democratic commitments which inform the provision. A purely literal method would contribute very little. The difficulty appears when the Court moves from a broad constitutional value to a specific institutional requirement which the text does not expressly state.
This is where MOPA’s strength and weakness meet. Objective purpose permits the Court to make an open constitutional standard meaningful in contemporary circumstances. At the same time, the breadth of objective purpose gives the interpreter considerable room in deciding what concrete rule should emerge from that standard.
The question is therefore not whether the case of Frimpong Boateng proves that MOPA is wrong. It proves nothing of the kind. It demonstrates instead why a purposive methodology requires discipline. The majority’s own language is instructive. The Court does not claim authority to choose the most attractive model of democracy. It claims authority to discover the model which the Constitution has chosen. The jurisprudential question is therefore how the process of discovery is distinguished from constitutional construction.
That question becomes especially difficult where the Court acknowledges that the rejected arrangement is itself democratic.
In that circumstance, the reasons for moving from one permissible conception of democracy to another conception said to be constitutionally compulsory must be especially clear. This is not an argument for judicial timidity. Courts must enforce constitutional standards even when doing so has substantial political consequences.
It then crystallizes into argument for constitutional justification. The greater the distance between the express constitutional language and the concrete rule announced by the Court, the greater the need to explain every part of the interpretive journey.
9. MOPA Should Not Become a Dictatorship of Method
There is also a broader methodological point which deserves consideration. The Constitution contains provisions of very different kinds. Some are broad statements of principle, some create institutions, some confer rights through open language, some prescribe detailed procedures and others specify qualifications, dates or numerical requirements.
There is little reason to assume that every one of these provisions should be interpreted with exactly the same emphasis.
A provision prescribing the term of the President does not present the same interpretive difficulty as a provision requiring administrative fairness. A detailed constitutional amendment procedure does not necessarily invite the same flexibility as an open guarantee of equality. The expression democratic principles naturally requires more purposive elaboration than a constitutional provision fixing a particular age or period.
Method should therefore respond to the nature of the constitutional provision. Text may carry greater weight in some cases, structure in others, history may sometimes be particularly important, and objective purpose may legitimately perform more work where the Constitution deliberately employs broad evaluative language.
The requirement should not be that every constitutional judgment recite MOPA before the real reasoning begins. The requirement should be that the Court explains why the interpretive materials upon which it relies are appropriate to the particular constitutional problem before it. This would move our jurisprudence on constitutional interpretation away from a competition between labels and towards a more useful examination of constitutional justification.
10. Towards a More Disciplined Ghanaian Purposivism
The approach suggested in this article does not require another elaborate theory. It requires courts to make certain matters visible in their reasoning. The constitutional language should remain the beginning of the inquiry because purpose must operate upon a meaning which the text can reasonably support. Context should be considered before the court moves towards broad abstraction. Constitutional structure should remain important because the allocation of authority is itself part of the constitutional design. History should inform meaning without permanently controlling it. Objective purpose should be demonstrated through constitutional materials rather than announced through attractive language. Competing constitutional values should be acknowledged rather than allowing one to appear as though it exhausted the constitutional inquiry.
Most importantly, courts should distinguish between what the Constitution permits, what its general values may appear to favour and what the Constitution actually requires. That final distinction may provide the most useful safeguard of all because constitutional adjudication frequently occurs in areas where several political arrangements are possible. Where the Constitution has deliberately left such a space, the judiciary should be cautious about converting a constitutional value into a detailed institutional command.
The point is not that courts should avoid difficult decisions. It is that constitutional supremacy applies to judicial interpretation as much as it applies to political action. A court exercising constitutional jurisdiction possesses enormous authority precisely because its interpretation may remove an issue from ordinary political disagreement. Once an arrangement is declared unconstitutional, the question is no longer simply whether the arrangement is wise, fair or democratic enough. It has been placed beyond the range of legitimate political choice unless the Constitution itself is amended.
11. Conclusion: Who Gives the Constitution Its Purpose?
The question with which this article began does not admit a simple answer. The framers contribute to constitutional purpose because the history and circumstances surrounding the adoption of the Constitution help explain the problems which particular provisions were intended to address. The constitutional text matters because it is the law which was ultimately adopted, and whatever purpose a court identifies must remain capable of expression through that text. The structure of the Constitution matters because the document makes institutional choices which cannot be displaced merely because another arrangement appears more effective. The values expressed throughout the Constitution matter because individual provisions form part of a larger constitutional order. Contemporary society also matters because an enduring Constitution must remain capable of application to circumstances which its framers could not have predicted.
Judges inevitably matter as well because none of these materials interpret themselves. The danger begins when the judicial role in identifying purpose becomes indistinguishable from authority to determine what the Constitution ought to say. A Constitution imprisoned completely within the subjective expectations of its framers would gradually lose its ability to govern new circumstances. A Constitution reduced to dictionary meanings would struggle with the broad concepts deliberately entrusted to judicial interpretation. But a Constitution whose meaning changes whenever a court identifies a sufficiently attractive objective purpose faces an equally serious danger because constitutional supremacy may remain intact in language even as constitutional meaning becomes increasingly dependent upon judicial preference.
MOPA’s contribution to Ghanaian constitutional law should therefore not be dismissed. Its recognition of purpose reflects the reality of constitutional interpretation, and its distinction between subjective and objective purpose provides a sophisticated account of how an enduring constitutional text can continue to operate after the generation which framed it has passed.
Its principal weakness arises from the same source as its strength. Objective purpose gives the Constitution room to breathe, but it also gives the interpreter room to move. The answer is not to remove that room. The answer is to require every significant movement to be constitutionally justified.
The case of Tuffour taught us that a Constitution cannot be approached as an ordinary legislative instrument and that its history, character and aspirations matter to its interpretation. The 31st December Case demonstrated both the attraction of reasoning from constitutional spirit and the concern that arises when the content of that spirit becomes difficult to define. Date-Bah JSC, drawing upon Barak, gave the discussion a more systematic form through the distinction between subjective and objective purpose, and the Ghana Lotto case demonstrated how that approach could allow constitutional meaning to respond to changing circumstances without treating historical intention as an absolute command.
The Frimpong Boateng case now brings the debate into a new stage. The majority accepted that the delegate system was not inherently undemocratic. It accepted that democracy may operate through more than one institutional form. It nevertheless concluded that, when article 55(5) is understood within Ghana’s wider constitutional order, direct participation by every party member in good standing is constitutionally required in the selection of presidential and parliamentary candidates.
The jurisprudential importance of the decision lies in the movement between those propositions. The majority was conscious of the danger of deciding the case according to political attractiveness and expressly stated that its task was to discover the democratic vision embedded in the Constitution. That is the correct constitutional ambition. The enduring question is how a court demonstrates that the vision it has identified belongs to the Constitution rather than to a judicial assessment of the political arrangement which would best advance constitutional values.
That question should not be answered by whether one agrees with the Supreme Court’s decision in Frimpong Boateng. A sound interpretive principle must remain sound when it produces an outcome one dislikes and must remain constraining when the judicial philosophy of the Court changes.
That is why interpretive discipline matters.The next stage in Ghanaian constitutional thought should therefore not involve abandoning the purposive tradition established through Tuffour, developed through subsequent decisions and given greater theoretical structure through the work of Date Bah JSC. The more useful task is to discipline that tradition by requiring a clearer relationship between language and purpose, a more open treatment of competing constitutional values and a sharper distinction between constitutional permission, constitutional preference and constitutional command. There will always be difficult constitutional cases, and reasonable judges will continue to disagree about them. No interpretive theory can remove judgment from judging, and any theory which claims to do so merely conceals the choices which interpretation inevitably requires.
Accepting the existence of judicial judgment, however, is not the same as surrendering constitutional meaning to judges. The Constitution gives courts authority to interpret it. That authority is formidable, but it is not an authority to improve the Constitution whenever its political arrangements appear imperfect. The Constitution itself contains procedures through which its provisions may be amended, and the existence of those procedures reminds us that there are changes which interpretation cannot legitimately accomplish.
The boundary between interpretation and amendment will not always be easy to draw. Constitutional law rarely provides that kind of precision. But difficulty in locating a boundary does not mean that the boundary has no constitutional importance.
Perhaps that is the central lesson of the debate over MOPA. The question is no longer whether Ghanaian judges may search for constitutional purpose. They plainly must. Nor is the real question whether the Constitution should be treated as a living instrument. A Constitution intended to endure must remain capable of application to a changing society. The more difficult question is whether our methods of interpretation allow us to distinguish between a Constitution which is living and a Constitution which is quietly being rewritten.
That is the point at which interpretive discipline becomes indispensable. The Constitution undoubtedly has purposes, and judges inevitably participate in identifying and applying them. Constitutional supremacy, however, requires something more before an asserted purpose can become constitutional law. The Court must demonstrate, through the language, context, structure, history and values of the Constitution, that the purpose it gives legal effect remains the Constitution’s purpose and has not, somewhere in the interpretive process, become its own.
