NATIONAL MEDIA COMMISSION vs. ATTORNEY-GENERAL [1999-2000] 2 GLR 577

CASES REFERRED TO

(1) Edusei v Attorney-General [1996-97] SC GLR 1; on review [1997-98] 2 GLR 1, SC; [1998-1999] SC GLR 753.

(2) Ghana Bar Association v Attorney-General, Supreme Court, 7 February 1995, unreported.

(3) Clark (C & J) Ltd v Inland Revenue Commissioner [1973] 1 WLR 905; [1973] 2 All ER 513; 117 SJ 509.

(4) Laganju v Olubadan-in-Council (1947) 12 WACA 233.

[p.580] of [1999-2000] 2 GLR 577

(5) New Patriotic Party v Rawlings [1993-94] 2 GLR 193, SC.

ACTION invoking the original jurisdiction of Supreme Court for a declaration, inter alia, that on a true and proper construction of the Constitution, 1992 and specifically of articles 168 and 195(1) thereof, the powers to appoint the chairmen and other members of the governing bodies of public corporations managing state-owned media, including the chief executives who were members of such governing bodies, was vested exclusively in the National Media Commission acting in consultation with the President.

Peter Ala Adjetey (with him Nutifafa Kuenyehia and Frank Abaidoo) for the plaintiffs.

Afrifa Gyasi, Chief State Attorney, for the defendant.

Edward Wiredu JSC. I have been privileged to read beforehand the learned opinion of my brother Acquah JSC which is about to be read.

In his characteristic delivery, he has critically examined, ably analysed and beautifully nutshelled the facts of this case, and has arrived, rightly in my view, at a conclusion which tallies with my own stand and understanding of the law in this dispute. I therefore write to concur in both his reasoning and conclusion that on the face of the plain and unambiguous language of article 168 of the Constitution, 1992 the authority to appoint the chairman and other members of the governing bodies of public corporations managing the state-owned media, including their chief executives who are also members of such governing bodies, vests in the National Media Commission acting in consultation with the President. I also endorse his conclusion that it is the commission which is vested with the right to exercise the powers set out in article 297(a) of the Constitution, 1992 in relation to such governing bodies, ie the chairmen, chief executives and other members of the governing bodies of public corporations managing the state-owned media.

I therefore hold in my judgment that any appointments made regarding any such individuals in contravention of the above view is void and is devoid of any legal effect.

[p.581] of [1999-2000] 2 GLR 577

Bamford-Addo JSC. I have been privileged to read in advance the opinion of my learned brother Acquah JSC which covers all aspects of this matter. I agree with him and I have nothing useful to add.

Ampiah JSC. I have read the leading opinion of my learned brother Acquah JSC and agree with him. I have nothing useful to add.

Adjabeng JSC. I have also read the opinion of my learned brother, Acquah JSC which he is about to read and I agree with his reasoning and conclusion. Indeed, the language used in the constitutional provisions in issue, especially article 168 of the Constitution, 1992, are so plain that I find no need to say anything more than my learned brother has so admirably done. I agree with him and my other brothers and sisters that the plaintiffs are entitled to the declarations sought by them.

Acquah JSC. My lords, the claim of the National Media Commission against the Attorney-General is for a declaration that:

“(1) On a true and proper construction of the Constitution, 1992 of Ghana, and specifically, of articles 168 and 195(1) thereof the power to appoint the chairmen and other members of the governing bodies of public corporations managing the-state owned media including the chief executives of such public corporation ‘members of the governing bodies of such, public corporations’, is vested exclusively in the National Media Commission acting in consultation with the President and not in the President, either acting alone or in consultation with any other person or authority.

(2) The exercise by the President of the power to appoint the chief executives of public corporations managing the state owned media, who are also members of the governing bodies of such public corporations, whether alone or in consultation with any other person or authority is inconsistent with and in contravention of the letter and spirit of articles 162, 167(c) and 168 of the Constitution, 1992 of the Republic of Ghana, and accordingly all appointments made by the President in purported exercise of such power are null, void and of no effect.

[p.582] of [1999-2000] 2 GLR 577

(3) An order setting aside all appointments made by the President of chief executives of corporations managing the state-owned media in violation of the letter and spirit of the Constitution, 1992 of the Republic of Ghana.”

Now, what led to the institution of this action? The National Media Commission (hereafter referred to as the commission) observed around 1994 and thereafter that the President, acting in consultation with certain authorities, was appointing chairmen, chief executives and other members of the governing bodies of public corporations managing state-owned media. The President was alleged to be exercising such powers of appointment under article 195(1) of the Constitution, 1992. But the commission, taking the view that they were the proper authority to make such appointments in consultation with the President, submitted memoranda to the Attorney-General protesting at the appointments made by the President. They contended, inter alia that:

“. . . the exercise by the President of a right purportedly derived from article 195(1) of the Constitution, 1992 to appoint the chief executives, who are the most powerful and the most influential of the officers of corporations managing the state-owned media, would not only do violence to the clear language of article 168 of the Constitution, 1992 but would set at naught and frustrate the Constitution, 1992’s commitment to guaranteeing the independence and freedom of the media and to insulating, in particular, the state-owned media from governmental control since by exercising the power to appoint the chief executives of corporations managing the state-owned media, which would necessarily carry with it the right to discipline such chief executives, including the right to remove them or suspend them from office, the President would effectively have the management of such corporations under his complete control.”

The commission followed up their memoranda with a meeting in August 1994 with the Attorney-General. At that meeting, the minutes of which were exhibited, the Attorney-General made it clear that he did not share their views, and that the business aspect of these public corporations should be distinguished from the news aspect. He said that the government had authority under the Constitution to appoint chief executives and the governing bodies

[p.583] of [1999-2000] 2 GLR 577 of these corporations, while the editors were to be appointed by the board. The Attorney-General went on to ask for a second look to be taken at article 195 in relation to the other provisions, ie articles 167 and 297(a) of the Constitution, 1992, otherwise the issue would have to be left to the court.”

Thereafter the President made further appointments to the state-owned media. The government also directed the Acting Director-General of the Ghana Broadcasting Corporation to proceed on an indefinite leave. He was later on recalled from leave. And so on 25 January 1996, the commission issued the instant writ, claiming the reliefs set out earlier.

In their accompanying statement of case, the commission set out a number of appointments made by the President to the various state-owned media—the New Times Corporation, the Ghana News Agency, the Graphic Corporation and the Ghana Broadcasting Corporation (GBC)—and contended that all these appointments were made in violation of article 168 in particular, and the letter and spirit of the Constitution, 1992.

In his statement of case, the Attorney-General denied the claim of the commission and contended that the state-owned media do not form part of the public service as set out under articles 190(1) and 195(1) of the Constitution, 1992. He then went on:

“(3) The defendant also says that even though the said media are owned by the State as public corporations, they are established as commercial ventures, falling under article 190(4) of the Constitution for the following reasons:

(i) the New Times Corporation Act, 1971 (Act 363), s 4, specifically directs the corporation to conduct its affairs on sound commercial basis;

(ii) the Graphic Corporation Instrument, 1971 (LI 709), directs the corporation by sections 3, 4 and 11 to operate as a commercial venture whose officers are not public officers.

(iii) the Ghana Broadcasting Corporation is also a commercial venture by virtue of sections 2(1), 8(3) and 11(2) of the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226);and (iv) the Ghana News Agency Instrument, 1971 (LI 680), ss 10, 13, 15(2) and 17 indicate that it was set up as

[p.584] of [1999-2000] 2 GLR 577 a commercial venture whose employees are not public servants.

Consequently, article 195(1) and 168 of the Constitution, 1992 cannot be applicable to the appointment of the chief executives, who are ex officio members of the governing boards of these corporations.

(4) Save that the Attorney-General initially formed the wrong opinion that the President could appoint the managing directors or general managers of the said corporations under article 195(1) of the

Constitution, paragraphs (8) and (9) of the statement of the plaintiffs’ case are denied.”

The commission attached to their statement of case, the appointment letters of Mr George Aryee as managing director of the New Times Corporation, and Messrs Sam Quaicoe and David Anaglate as General Manager and Director-General respectively of the Ghana News Agency and the Ghana Broadcasting Corporation, both letters dated 31 March 1995. Reference was also made in paragraph (13) of the statement of case to the appointment of Dr Kofi Frimpong as the Director-General of the Ghana Broadcasting Corporation in 1995 by the President. Also exhibited was the letter from the Deputy Minister of Information directing the Acting Director-General of Ghana Broadcasting Corporation to proceed on an indefinite leave, and another letter recalling him from leave.

Twelve identical issues for determination were filed by each of the parties. The issues centered on the body with authority to appoint the chief executives, managing directors and members of the governing bodies of the four public corporations in issue; the effect of the President’s exercise of the power of appointment of such top officers of these corporations; whether the President’s appointment of the officers mentioned above did not constitute usurpation of the powers of the commission; and whether the letters of appointment referred to herein were even in conformity with the provisions of the article 195(1) of the Constitutions, 1992.

Now, it is vital to note that this suit was initiated in 1996 following certain appointments made and other actions taken against the chief executives of public corporations managing the state-owned media. In November 1998, when the suit came on for hearing, virtually all these chief executives were no longer in

[p.585] of [1999-2000] 2 GLR 577 office, thus raising the question as to the need to hear the suit. But there is no indication that the rival views as to who has the authority to appoint such officers, has been resolved. It is for this reason that this opinion is hereby delivered.

Now, the contention of the commission is that under article 168 of the Constitution, 1992, the authority to appoint chairmen and other members of the governing bodies of state-owned media, including chief executives who are designated ex-officio members of the governing bodies, is vested in the commission acting in consultation with the President; while the stand of the Attorney-General initially was that it was the President acting under article 195(1) of the Constitution, 1992. But in paragraph (4) of his statement of case, the Attorney-General states:

“Save that the Attorney-General initially formed the wrong opinion that the President could appoint the managing directors or general managers of the said corporations under articles 195(1) of the Constitution, 1992 paragraphs (8) and (9) of the statement of the plaintiff’s case are denied.”

(The emphasis is mine.) Thereafter, although the authority under which the President makes such appointment is not disclosed, the Attorney-General proceeds in paragraph (5) of his statement of case to contend that the President made those appointments “after the requisite consultations, which did not need the approval of the plaintiff.” Under which provisions of the Constitution, 1992 then does the President have such power?

The provisions of the Constitution, 1992 which call for interpretation, according to the pleadings, are articles 162,168,190,195 and 297(a). Articles 162, 167 and 168 are parts of the provisions in chapter 12, dealing with the “Freedom and Independence of the Media” while articles 190 and 195 are under chapter 14, dealing with the Public Service; and finally article 297(a) is under chapter 26 on miscellaneous matters.

But to begin with, it is important to remind ourselves that we are dealing with our national Constitution, 1992 not an ordinary Act of Parliament. It is a document that expresses our sovereign will and embodies our soul. It creates authorities and vests certain powers in them. It gives certain rights to persons as well as bodies of persons, and imposes obligations as much as it confers privileges and powers. All these duties, obligations, powers, privileges and rights must be exercised and enforced not only in accordance

[p.586] of [1999-2000] 2 GLR 577 with the letter, but also with the spirit of the Constitution, 1992. Accordingly, in interpreting the Constitution, 1992 care must be taken to ensure that all the provisions work together as parts of a functioning whole. The parts must fit together logically to form a rational, internally consistent framework. And because the framework has a purpose, the parts are also to work together dynamically, each contributing something towards accomplishing the intended goal. Each provision must therefore be capable of operating without coming into conflict with any other.

Admittedly, the public corporations managing state-owned media are the Ghana News Agency, established under the Ghana News Agency Instrument, 1971 (LI 680); the Ghana Broadcasting Corporation, established under the Ghana Broadcasting Corporation Decree 1968, (NLCD 226); the Graphic Corporation established under the Graphic Corporation Instrument 1971 (LI 709); and the New Times Corporation established under the News Times Corporation Act, 1971 (Act 363). These enactments clearly show that the corporations were set up not solely to engage in commercial activities but to assist in the implementation and realization of certain government policies and programmes. Thus for example, the objects of the Ghana Broadcasting Corporation as set out in section 2(1) of NLCD 226 are:

“(a) to undertake sound, commercial and television broadcasts;

(b) to prepare in the field of culture, education, information and entertainment programmes reflecting National progress and aspirations;

(c) to broadcast the programmes prepared under sub-sub-paragraph (b) in the main Ghanaian languages and in English and such other foreign languages as the Corporations may determine;

(d) to carry on an external service of sound broadcasting;

(e) to enter into agreement for the utilisation of programmes prepared in other countries; and (f) to carry on such other activities as are incidental or conducive to the attainment of all or any of the foregoing.”

Section 8(3) of NLCD 226 also provides that the Ghana Broadcasting Corporation: “May engage in commercial broadcasting through the sale of paid advertisements scheduled at

[p.587] of [1999-2000] 2 GLR 577 prescribed spots in its programmes service.” Similarly, section 4 of Act 363 permits the New Times Corporation to conduct its affairs on sound commercial basis; sections 3, 4 and 11 of LI 709 also give such concession to the Graphic Corporation; while sections 10, 13, 15(2) and 17 of LI 680 permit the Ghana New Agency to engage in some commercial activities. It would therefore be wrong to contend that these public corporations are set up purely as commercial ventures. They have important and crucial national assignments to execute.

Now, the Public Service comprises the Civil Service and practically all other organizations, such as public corporations, that are in one way or the other dependent on the government for their financial support and are intended in any way to assist in the implementation of the policies and decisions of the government. As provided in article 190(1), the list of the organizations forming the Public Service is a long one and includes the Civil Service and other government services, non-commercial public corporations and any other public corporation established by the Constitution, 1992 or by Parliament. Article 190(4) further points out that public corporations set up as commercial ventures are not covered by the provisions of chapter 14 of the Constitution, 1992. Accordingly since the four public corporations managing state-owned media are permitted to engage in commercial activities, the provisions of chapter 14 are inapplicable to them. Consequently, as rightly con-tended by both parties, article 195(1) of the Constitution, 1992 cannot govern the appointment of chairmen and other members of their governing bodies, including their chief executives.

Under which provision then are these top official appointed? The provisions on Freedom and Independence of the Media set out in chapter 12 of the Constitution, 1992 are more far-reaching than any we have had in our previous Constitutions. The Constitution, 1969 provided in its article 22(2) thereof that:

“Any person responsible for any national medium for the dissemination of any kind of information to the public shall afford equal opportunities and facilities for the representation of opposing or differing view .”

The Constitution, 1979 sought to secure the freedom of expression, in stronger and positive terms in its article 28 and went further to provide for the establishment of the Press Commission [p.588] of [1999-2000] 2 GLR 577 in its chapter 22 as a means of ensuring the development of free and responsible press in this country. According to paragraph 291, page 112, of the Memorandum on the Draft Constitution, 1978: “The principal function of the Press Commission shall be to appoint and supervise the operation of the managing or governing boards of the state-owned institutions of the press and media for mass communication.”

Now, the makers of the Constitution, 1992, in coming out with the provisions on freedom and independence of the media, were driven by two considerations: the role of the media in a democratic society, and the then state of the media in the country,

In political theory, the media serves as a vehicle for self-expression; as a reflection of public opinion; as an informer of the public as a participant in the formation of public opinions and as a watchdog of the government. These roles do not necessarily complement each other and are not all even compatible with one another; yet each is vital for democratic system of government. Indeed the media is the medium and actor in the process of forming public opinion. For, if the citizen is called upon to make a decision on a national issue, he must be fully informed; he has to know and weigh controversial opinions which others have formed. It is the media which promotes this discussion, comments on information, gives orientation and critically sums up the new opinions which are constantly being formed and the demands of society and different groups. The media makes them object of public discussion and brings them to the attention of government, so that they have a measuring stick for their actions.

The committee of experts who made proposals for our Constitution, 1992 were certainly not unaware of the above vital roles of the media. Accordingly, in their report, dated July 1991, presented to the Provisional National Defence Council (PNDC), they stated in chapter 6 thereof, at pp 84-85 thus: “The mass-media, the press and platform are the means to educate the people and make them watchdogs of their liberties inherent in a democracy… In addition to the role of informing and educating the public and the government on their constitutional rights and duties, the press and the mass-media would have a vital role to play as a watchdog ensuring that the Constitution is respected and honoured. The free and respon-

[p.589] of [1999-2000] 2 GLR 577 sible press and the mass-media would be expected to expose and denounce abuses and misuse of power, defend human rights and educate, mobilise and articulate public opinion and feelings on national affairs . . .

For the government in power, a free responsible and independent press and mass-media provides channels to obtain feedback on its performance and also acts as a safety valve by enabling citizens to freely express their views.”

On the state of the media at the time of making the Constitution, 1992 the committee of experts observed in paragraph 188, at p 86 of their Report:

“As things stand now, there is direct governmental (ministerial) interference in or control of the operations of the press. Editors and reporters are appointed by the Ministry of information, and they see themselves as civil servants and feel constrained in carrying out their professional function consistent with the highest professional standards possible. This ministerial power of appointment and dismissal of reporters and governmental interference in media activities have greatly contributed to the erosion of the freedom and independence of the press and media in Ghana.”

Accordingly, article 162(1) of the Constitution, 1992 strikes the keynote by providing: “162(1) Freedom and Independence of the media are hereby guaranteed.” The word “media” as generally understood and indeed employed here applies to all those forms of mass communication, such as newspapers, sometimes referred to as print media or the press; radio, which is referred to as the sound media; and television, which is described as the visual media, even though it involves the use of sound. Thus, by article 162(1), the freedom and independence of the press, sound and visual media are all guaranteed, whether privately owned or state-owned. Consequently, the remaining clauses of article 162 proceed to ban: censorship of the media; the imposition of impediments to the establishment of private press or media; the passing of laws requiring licenses as a condition for establishing or operating any of the recognized media; for mass communication or information; subjection to government control or interference of editors and publishers of newspapers and other institutions of the mass media;

[p.590] of [1999-2000] 2 GLR 577 or the harassment of such persons for their editorial opinions views or the content of their publications.

Article 166 provides for the establishment of the National Media Commission by Parliament, while article 167 sets out five functions of this Commission. Thereafter article 168 provides:

“168 The Commission shall appoint the chairman and other members of the governing bodies of public corporations managing the state-owned media in consultation with the President.”

The language of the above provision is so plain and unambiguous that it means nothing more than what it says. And further accords with the overall objective of securing the independence and freedom of those public corporations from governmental control. To interpret it otherwise would be doing violence to the language of the article and further subverting the noble intentions of the framers of the Constitution, 1992. In the Constitution, 1979, article 193 dealing with the functions of the Press Commission provided as the first function of that commission:

“the appointment of the chairman and other members of the governing body of any public corporation established for sound or television broadcasting, the press or other media of mass communication or information.”

Consequently, I am of the view that the makers of the Constitution, 1992 looked upon the responsibility of appointing such chairmen and other members of the governing bodies as an important and special task which deserves a whole article to itself. Hence article 168. It singles out that function and gives it special prominence.

Now, article 297(a) of the Constitution, 1992 provides:

“297. In this Constitution and in any other law- (a) The power to appoint a person to hold or to act in an office in the public service shall include the power to confirm appointments, to exercise disciplinary control over persons holding or acting in such office and to remove the persons from office.”

This means that whoever has the power to appoint a person to an office in the public service, has the power to confirm or to

[p.591] of [1999-2000] 2 GLR 577 withdraw the said appointment or and to take disciplinary measures over him. In connection with the instant case, it implies that the direction to proceed or recall from leave as given to Mr David Anaglate in the letters exhibited, ought to have been by the appointing authority. And as provided in article 168 the appointing authority is the National Media Commission acting in consultation with the President.

Indeed, in the Media Commission Act, 1993 (Act 449) enacted by Parliament in pursuance of the provisions of article 166 of the Constitution, 1992, which Act received presidential assent on 7 July 1993, it is provided in section 2(1)(e) thereof that the commission’s functions are, inter alia: “(e) to appoint in consultation with the President, the chairman and other members of the governing bodies of public corporations managing the state-owned media.”

On the plain and unambiguous language of article 168 of the Constitution, 1992 therefore, I am satisfied that the authority to appoint the chairmen and other members of the governing bodies including chief executives who are members of such governing bodies, is the National Media Commission acting in consultation with the President. And it is the same authority which is entitled to exercise the powers set out in article 297(a) of the Constitution, 1992 in relation to such chairmen, chief executives and other members of the governing bodies of public corporations managing state-owned media.

Atuguba JSC. I have had the advantage of reading before hand the able judgment of my brother Acquah JSC and I agree that the plaintiffs be granted the declarations they seek from this court and the consequential order made.

However, I desire to add a few words of my own. Though the parties have filed separate memoranda of issues, they are virtually the same. Their first identical issue for trial states:

“Whether or not on a true and proper construction of the Constitution, 1992 of Ghana, and specifically of articles 168 and 195(1) thereof the power to appoint the chairmen and other members of the governing bodies of public corporation managing the state-owned media including the chief executives of such public corporations howsoever designated where such chief executives are members of the governing bodies of such public corporations, is vested exclusively in the

[p.592] of [1999-2000] 2 GLR 577

National Media commission acting in consultation with the President and not in the President either acting alone or in consultation with any other person or authority.”

(The emphasis is mine.) From this, it is clear that the parties rely on: (i) the Constitution, 1992 generally; (ii) specific articles thereof; and (iii) on a common issue as to whether the power of the National Media Commission to make the said appointments, if it exists, is “vested exclusively” in that body.

Article 168 of the Constitution, 1992 nakedly and bluntly provides:

“168. The Commission shall appoint the chairmen and other members of the governing bodies of public corporations managing the state-owned media in consultation with the President.”

(The emphasis is mine.) This wording could earn the draftsman an award for drafting clarity. But the defendant contends that the public corporations managing the state-owned media in this case, namely the Ghana News Agency, the Ghana Broadcasting Corporation, the Graphic Corporation and the New Times Corporation, are “public corporations .established as commercial ventures falling under article 190(4) of the Constitution, 1992 and are therefore outside the purview of article 195(1) and 168 with regard “to the appointment of the chief executives of the state-owned media.” (The emphasis is mine.) The said article 190(4) provides: “For purposes of this article ‘public corporation’ means a public corporation established in accordance with article 192 of this Constitution other than one set up as a commercial venture.”

Closely connected with that contention is the defendant’s question whether the aforementioned public corporations involved in this action form part of the Public Services under articles 190(1) and 195(1) of the Constitution, 1992. It is obvious that this latter question is founded on article 190(1)(b) which provides as follow: “(1) The Public Service of Ghana shall include— . . . (b) public corporations other than those set up as commercial ventures.”

Article 195(1) of the Constitution, 1992 provides:

“195. (1) Subject to the provisions of this Constitution, the power to appoint persons to hold or to act in an office in the public services shall vest in the President acting in accordance with the advice of the governing council of the service

[p.593] of [1999-2000] 2 GLR 577 concerned given in consultation with the Public Services Commission.”

(The emphasis is mine.) It is clear from this provision that it relates to the power of the President to make appointments in the public service. It is article 190 of the Constitution, 1992 that lists “the public services” of Ghana to which the powers of appointment of the President under the said article 195(1) relate. It is clear therefore that since article 190(1)(b) and (4) of the Constitution, 1992 excludes public corporations set up as commercial ventures from the purview of public corporations which otherwise are within the purview of “public services” within that article, if the public corporations, namely the Ghana News Agency, the Ghana Broadcasting Corporation, the Graphic Corporation and the New Times Corporation, involved in this action are ones “set up as commercial ventures”, then they fall outside the powers of the President under article 195(1) of the Constitution, 1992, but not the powers of the National Media Commission because the latter’s powers are not tied to the expression “public services.” Article 190(4) of the Constitution, 1992 clearly shows that the definition of “public corporation” therein is limited to that article.

I do not think, though, that much turns on the question whether the public corporations involved in this action are public corporations “set up as commercial venture” If they are, they clearly fall out of the purview of the President’s powers of appointment under article 195(1) aforesaid. But if they are not, the President will still lack the power to appoint in respect of their chairmen and other members of their governing bodies. This is because article 195(1) opens with the phrase “Subject to the provisions of this Constitution . . .” The import of this phrase was amply considered in Edusei v Attorney-General [1996-97] SC GLR 1 later reviewed in Edusei v Attorney-General [1998-99] SC GLR 753. The majority in both the original and review decisions held that the effect of those words was to exclude the Supreme Court from the enforcement of the fundamental human rights. The provision in question was article 130(1) of the Constitution, 1992 which provides:

“130. (1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms

[p.594] of [1999-2000] 2 GLR 577 as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in

(a) all matters relating to the enforcement or interpretation of this Constitution.”

(The emphasis is mine.) By similar reasoning relating to article 140(1) and the question of the jurisdiction of the High Court in chieftaincy matters , it was held in Ghana Bar Association v Attorney-General, Supreme Court, 7 February 1995, unreported that the High Court lacks jurisdiction in chieftaincy matters. Whether one agrees with that approach with regard to the phrase “subject to” on the facts of those cases, is immaterial in the circumstances of this case.

In C & J Clark Ltd v Inland Revenue Commissioners [1973] 2 All ER 513 at 520 Megarry J said: “In my judgment, the phrase ‘subject to’ is a simple provision which merely subjects the provision of the subject sub-section to the provisions of the master sub-sections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision.”

(The emphasis is mine.) Applying this test, it is clear that since the powers of the President under article 195(1) to make appointments in the public services are to be exercised “in accordance with the advice of the governing council of the service concerned given in consultation with the Public Services Commission” but the power of the plaintiff, the National Media Commission, under article 168 is to be exercised “in consultation with the President” the two sets of powers conflict and, therefore, since article 195(1) subjects itself to the other provisions of the Constitution, 1992, inclusive of article 168, then the latter prevails over the former. It is therefore clear that as between the President under article 195(1) and the plaintiff commission under article 168 of the Constitution, 1992, the plaintiff is the proper appointing authority in respect of “the chairmen and other members of the governing bodies of public corporations managing the state-owned media in consultation with the President.”(The emphasis is mine.)

Is the plaintiff’s power under article 168 of the Constitution, 1992 exclusive? In the Edusei and Ghana Bar Association cases (supra) it was further held that by reason of the phrase “subject

[p.595] of [1999-2000] 2 GLR 577 to”, the powers of the High Court in the enforcement of the fundamental human rights and of the chieftaincy tribunals in chieftaincy matters, respectively, were exclusive: In any case, the Report of the Committee of Experts (Constitution) on Proposals for a Draft Constitution of Ghana, dated 31 July 1991, shows quite clearly that the plaintiffs’ powers under article 168 of the Constitution, 1992 were meant to be exclusive. At page 86 appears the following:

“188. This ministerial power of appointment and dismissal of reporters and governmental interference in media activities have greatly contributed to the erosion of the freedom and independence of the press and media in Ghana.

189. To reverse this erosion, and ensure the growth and strengthening of press and media freedom and independence in the Fourth Republic, the following are proposed:

(1) that an independent body like the Press Commission provided for in the Third Republican Constitution (Chapter 22) must be set up. Since this body would handle matters related to both the press and electronic media, it should be called MEDIA COMMISSION.

(2) The Media Commission is to perform the functions currently discharged by the Minister of Information as far as the public sector press is concerned. The functions of the Commission are to include the appointment of members of the governing body of any public corporation established for sound or television broadcasting, the press or other media of mass communication.”

(The emphasis is mine.) It is significant that the said committee of experts also stated at page 168 of their report as follows:

“365. The Committee’s attention was drawn to a comprehensive programme of the restructuring of the public services that had been under way for several years. Some of these changes constitute radical departures from time-honoured structures and procedures in the Ghana Public Services.

366. We were further advised that the process of reorganization had not been completed and that certain structures and procedures were still evolving. In view of the wide-ranging nature of these reforms, the fluid state of the restructuring

[p.596] of [1999-2000] 2 GLR 577 exercise, and the severe tie constraints under which we laboured; we were not in a position to make a definitive evaluation of the structures of the Public Services. The Committee is therefore unable to make concrete detailed proposals in this regard beyond the following general principles:

The principal objective of any major restructuring should be to ensure a viable, efficient and productive public administration. All changes should therefore be evaluated against this overriding criterion.

2. In the light of the foregoing, the question may be raised whether certain aspects of the restructuring such as . . .

(c) the proliferation of appointing authorities in the Public Services, would all comply with the above guiding principle.”

(The emphasis is mine.) Is this concern of the committee of experts, consistent with any of plurality of appointing authorities in respect of the “chairmen and other members of the governing bodies of public corporations managing the state-owned media” in article 168 of the Constitution, 1992? I should definitely think not.

It is pertinent that it is against the above-stated background that the committee of experts at page 257 of their Report made the draft proposal for the appointing power of the plaintiff-commission in almost the ipssissima verba of article 168 of the Constitution, 1992. There, the following is stated under appendix B: “B. THE NATIONAL MEDIA COMMISSION”

1 There shall be a National Media Commission which shall be non-partisan and autonomous and shall have the following functions: . . .

(d) To appoint the chairmen and other members of the governing bodies of public corporations managing the state-owned media.”

(The emphasis is mine.) The above-stated excerpts from the report of the committee of experts show quite clearly quo ammo the provision in article 168 of the Constitution was therein inserted and leaves no doubt that the power therein conferred was meant to be exclusively for the plaintiffs. For these reasons, other apparently competing provisions of the Constitution, 1992 such as articles 58(1) and 70(1) cannot prejudice the exclusive power of the plain-

[p.597] of [1999-2000] 2 GLR 577 tiff under article 168 aforesaid. Article 58(1) of the Constitution, 1992 provides:

“58 (1) The executive authority of Ghana shall vest in the President and shall be exercised in accordance with the provisions of this Constitution.”

(The emphasis is mine.) In my view, this provision is to the same effect as if it had opened with the phrase “Subject to the provisions of this Constitution. I have already stated the effect of that phrase.

Article 70(1) of the Constitution, 1992 provides:

“70. (1) The President shall, acting in consultation with the Council of State, appoint—. . .

(d) the chairmen and other members of-

(iii) the governing bodies of public corporations.”

(The emphasis is mine.)

It will be seen that this provision relates to chairmen and other members of the governing bodies of public corporations generally. On the other hand article 168 of the Constitution, 1992 is solely and specially concerned with the appointment of the chairmen and other members of “the governing bodies of public corporations managing the state-owned media.” It is obvious that the words “managing the state-owned media” which are added to this provision but which are absent from article 70(1) were not therein inserted for nothing. In Lagunju v Olubadan-in-Council (1947) 12 WACA 233 at 236 the court said: “. . . in the words of Halsbury’s Laws of England, 2 ed., Vol. XXI, pages 501-2:

It may be presumed: (i) that words are not used in a statute without a meaning and so effect must be given, if possible, to all the words used, for the legislature is deemed not to waste its words or say anything in vain.”

(The emphasis is mine.) That being so, the provisions of articles 70(1) and 168 of the Constitution, 1992 cannot be taken to confer concurrent appointing powers on the President and the plaintiff commission, respectively, since that will denude the said additional concluding words of article 168 of the Constitution, 1992 of the additional effect intended for them. It is also well-settled, as

[p.598] of [1999-2000] 2 GLR 577 by Aikins JSC in New Patriotic Party v Rawlings [1993-94] 2 GLR 193 at 212, SC, that: “The law with respect to general and particular or specific enactments is trite and is to the effect that where a particular or specific enactment and a general enactment appear in the same statute, and the general enactment, taken in its most comprehensive sense, would override the specific enactment, the specific enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply: see Pretty v Solly (1859) 26 Beau 606 at 610 . . . This special provision stands as an exceptional proviso upon the general It is only where if appears from a consideration of the general enactment in the light of prevailing circumstances that Parliament or in the case of a Constitution, its framers, intended only to establish a rule of universal application that the special provision must give way thereto.”

(The emphasis is mine.) In view of what I extracted earlier from the report of the committee of experts, it clearly cannot be said that the committee, which intended to suppress the mischief of governmental interference with the media and also deprecated “the proliferation of appointing authorities in the public services,” intended to prejudice the exclusive effect of article 168 of the Constitution, 1992.

In conclusion, I hold that whether on the application of traditional common law rules of construction or on the broader, purposive and non-technical approach advocated for the construction of a Constitution, the plaintiff’s action succeeds in the terms earlier indicated.

Akuffo JSC: I also agree with my brother Acquah JSC.

Declaration granted.

LSNA.