Case Brief: Ghana Bar Association v. Attorney-General and Abban (Abban Case)

“With great respect to my learned brother, I think this a very simplistic way to consider a serious and deep legal concept like the “”political question”. I have always been of the view that the principle of political question is something which is inherent in the concept of separation of powers where certain functions are committed to a specific branch of government. In such a situation a political question cannot evolve into a judicial question. Adade JSC refused the invitation to decline jurisdiction in the case of New Patriotic Party v Attorney-General (supra) for he was of the view that the invitation was being extended to the court, on the grounds that, in his own words, “”the case is a political one.”” As I have pointed out elsewhere in this ruling, “a political question” is different from “a political case.” The former concept has a strong jurisprudential connotation and is rooted in the doctrine of separation of powers. To demonstrate that the principle of non-justiciable political question is the product of the concept of the separation of powers, I will refer to some judicial opinions. In the celebrated case of Baker v Carr (supra) which was relied on by him, Justice Brennan said at 210 thus: “”The non-justiciability of a political question is primarily a function of the separation of powers.”” And in the same Baker case (supra) at 242, Justice Douglas in a separate opinion stated the problems of political question as “involving the distribution of power between the Court, the Congress, and the Chief Executive.”

The political question principle is a tool for the maintenance of governmental order. Therefore, to make such an emphatic statement as my brother Adade JSC did in New Patriotic Party v Attorney- General (supra), when considering a written constitution, the underlying jurisprudential consideration of which is the separation of powers is, in my view, too far-fetched and of doubtful validity. It is however legitimate to say that the mere fact that a suit seeks the protection of a political right does not mean that it presents “a political question” and therefore non-justiciable. Justice Brennan in his contribution in the Baker case (supra) brings out the distinction, unlike my brother in New Patriotic Party v Attorney-General (supra). Justice Brennan said at 217:

“The doctrine of which we treat is one of “a political question” not one of ‘political cases.’ The courts cannot reject as ‘no lawsuit’ a bona fide controversy as to whether some action denominated as “political” exceeds constitutional authority. (The emphasis is mine.)

The very essence of the guarantee of fundamental human rights consists in the right of the individual to seek redress from the courts and claim protection of the law whenever he receives or perceives an injury to his rights. The courts have never denied redress, on grounds of non-justiciability, to anybody who asserts that his rights have been breached. This has always been a traditional subject of judicial intervention.

I do not, therefore, think it right to assert that the doctrine of political question does not apply under our Constitution, 1992 because questions of human rights tend to have “large components of political issues” and yet they are justiciable. The term “political question” as we have seen is not used in its popular sense but in a technical legal sense; in a philosophical or jurisprudential sense. The assertion that the doctrine does not apply under our Constitution, 1992 without any attempt at a definition is unfortunate.

The Ghanaian Constitution, 1992 has been influenced not only by our past experiences but also by thinkers like Montesquieu, in the allocation of state power to the three branches of government: the executive, the legislature and the judiciary. The adoption of the concept of separation of powers by the framers of our Constitution, 1992 aims not only at the prevention of the exercise of arbitrary power with its attendant tyranny, but also aims at the promotion of efficiency and avoidance of friction or conflict between the various arms of government. See the case of Tuffuor v Attorney-General (supra) where the Court of Appeal sitting as the Supreme Court declined jurisdiction to examine proceedings in Parliament and consequently struck out the [p.646] Speaker of Parliament as the first defendant. And in the case of Youngstown Sheet & Tube Co v Sawyer (The Steel Seizure Case), 343 US 579 at 635 (1952), Justice Jackson said of the concept of the separation of powers:

“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”
There are local judicial statements against the view of Adade JSC expressed in New Patriotic Party v Attorney-General (supra). The celebrated case of Tuffuor v Attorney-General (supra) offers the first example. In this case, one of the reliefs the plaintiff was claiming was a declaration that:

“”[T]he purported nomination by the President of the Republic of Fred Kwasi Apaloo for approval by Parliament of his appointment as Chief Justice of the Republic and member of the Supreme Court and his purported vetting and rejection by Parliament as such on 16 August 1980 were each acts effected in contravention of the Constitution and laws of the Republic and were therefore all null and void and of no effect.””

The Speaker of Parliament was made the first defendant in this suit. The court considered the impropriety of joining the Speaker of Parliament and decided to strike out the Speaker as a defendant. This is what the court said at 650:

“This then brings us to the question of how far the courts can question what, under our Constitution, has been done in, and by, Parliament? There is a long line of authorities which establishes two important principles governing the relationship that subsists or should exist between Parliament and the courts:
(a) that the courts can call in question a decision of Parliament; but that the courts cannot seek to extend their writs into what happens in Parliament; and
(b) that the law and custom of Parliament is a distinct body of law and, as constitutional experts do not put it, “unknown to the courts.”

At pp. 650-653: My Lords, having identified the characteristics, I think it will be appropriate now to confront the ultimate question; whether the criteria we have identified as to what constitutes a nonjusticiable “political question” brings the instant case under the umbrella of the said doctrine. The natural beginning, as was pointed out in the Baker case p.651, is to note whether any of the common characteristics which we have been able to identify are present.
“My Lords, every element is present in the case before us. To the first question, whether the appointment of the Chief Justice is constitutionally committed to other agencies of government, I will answer in the affirmative.

By the provisions of article 144(1) of the Constitution, 1992 this function is specifically committed to both the executive and the legislature; and to accept the invitation which is being extended to us and exercise jurisdiction in the matter, we shall be behaving like an unruly dog which has refused to be chained to its own kennel but wanders to places where it ought not to be. Any attempt by the Supreme Court to claim a power to be able to declare null and void the appointment of the Chief Justice made by the President, in consultation with the Council of State and with the approval of Parliament as provided in the Constitution, 1992 could not only correctly or justly be characterised, in the words of Chief Justice Marshall, as “”an absurd and excessive extravagance”” but also as usurpation of the constitutional functions of both the executive and the legislature. As a fall out, we shall be deliberately courting confrontation not only with the executive, but also with Parliament whose proceedings we have no power to scrutinize.

If the President, in consultation with the Council of State and with the approval of Parliament makes an appointment in compliance with the Constitution, 1992, his authority, in the words of Justice Jackson, “is at its maximum”. Because in such circumstances, his authority includes all that he possesses under the Constitution, 1992 plus all that Parliament, the people’s direct representatives, has. When the President gets the support of Parliament in the discharge of a constitutional duty, he can in such circumstance be described not only as close to personifying the sovereign people of Ghana, but also doing their will. If the President’s act is held to be unconstitutional in these circumstances, then it means that the Government of Ghana, in the words of Gunther, “as an undivided whole lacks power.” For, as was pointed out by Professor Edward S Corwin, quoted by Professor H J Abraham in his book, The Judicial Process (6th ed) at p 358 the principle of, “a political question relates to the possession of political power, [p.652] of sovereignty, of government, the determination of which is vested in Congress and the President, and whose decisions are binding on the Courts.  “The appointment of the Chief Justice is vested in the President, the Council of State and Parliament, ipso facto the determination of who is a person “”of high moral character and proven integrity.”

Their decision in this regard is binding on the courts. It is important that we show decent respect for the wisdom, integrity and patriotism of the President and Parliament. It was Justice Felix Frankfurter who wrote

“even the most rampant worshipper of judicial supremacy admits that wisdom and justice are not the test of constitutionality.”

In assuming jurisdiction to adjudicate in the matter, we shall certainly be entering upon policy determinations for which judicially manageable standards are not available. How do we probe what factors influenced the President, the Council of State and Parliament in nominating, advising and approving the second defendant as the Chief Justice of Ghana? By what judicial standard shall we be ascertaining the role of these agencies of government in the appointment of the second defendant?

The Constitution, 1992 is silent on who “a man of high moral character and proven integrity is and the factors to be taken into account in finding such a person for appointment as the Chief Justice of Ghana. The framers of the Constitution, 1992 have deliberately left these matters to the good sense of the President, the Council of State, and Parliament which personifies the sovereign people of Ghana, being their direct representatives. Can we substitute our notions of  “a man of high moral character and proven integrity”  for theirs without appearing to be, or actually, appointing the Chief Justice instead of the accredited organs? Shall we not be granting this court the power to veto the appointment? I do not think the framers of our Constitution, 1992 intend to anoint and enthrone the judiciary. The political question principle is one basic virtue to emanate from the concept of separation of powers. This court must apply it in an endeavour to find its proper place within the constitutional structure. It has already been pointed out that there is no means for effective judicial relief. The Supreme Court is of course not a platform for political debate, nor can we turn ourselves into parliamentarians. In the Baker case (supra) at 267 Justice Frankfurter in his minority opinion [p.653] has these words of caution: “The Court’s authority” possessed of neither the purse nor the sword ”ultimately rests on sustained public confidence in its moral sanction” Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.””(The emphasis is mine.)