NEW PATRIOTIC PARTY v ATTORNEY-GENERAL [1997-98] 1 GLR 378

DIVISION: SUPREME COURT, ACCRA

DATE: 12 MARCH 1997

BEFORE: BAMFORD-ADDO, AMPIAH, KPEGAH, ATUGUBA

AND AKUFFO JJSC.

CASES REFERRED TO

(1) Ghana Bar Assocation v Attorney-General [1994-95] GLR 290, SC.

(2) Tuffour v Attorney-General [1980] GLR 637, CA sitting as SC.

(3) Republic v High Court, Accra; Ex parte Adjei [1984-86] GLR 511, SC.

(4) Attorney-General v Anitigua[sic](2) Times [1976] AC 16; [1975] 3 All ER 81, PC.

(5) Societe United Docks v Government of Mauritius [1985] LRC (Const) 801, PC.

[p.383] of [1997-98] 1 GLR 378

(6) New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC.

(7) Hinds v R [1976] 2 WLR 366, PC.

(8) Dewan v. Undangan Negerikelenian v Nordin Bin Sallah [1992] 1 Malayan Law Jurnal [sic](3)

676, SC.

(9) Mensima v Attorney-General [1997-98] 1 GLR 159, SC (ante); [1996-97] GLR 676, SC.

(10) Robertson v French (1803) 4 East 130.

(11) Lloyd v Lloyd (1837) 2 My and Cr 192.

(12) New Patriotic Party v Electoral Commission [1993-94] 1 GLR 124, SC.

(13) Edusei v Attorney-General [1996-97] GLR 1, SC.

(14) Gbedemah v Awoonor-Williams (1970) 2 G&G 438, CA.

(15) Bilson v Attorney-General [1993-94] 1 GLR 104, SC.

(16) Blair v United States, 250 US 273 (1919).

(17) Roe v Wade, 410 US 113; 93 SCt 705 (1973).

(18) Barrows v Jackson, 346 US 249 (1953).

(19) Griswold v Connecticut, 381 US 479 (1965).

(20) NAACP v Alabama, 357 US 449; 78 SCt 1163 (1958).

(21) Chicago & Grand Trunk Rly v Wellman, 143 US 339.

(22) Liverpool, NY & PSS Co v Emmigration Commissioners, 113 US 33.

(23) Burton v United States, 196 US 283 (1905).

(24) Siler v Louisville & Nashville R Co, 213 US 175 (1909).

(25) Light v United States, 220 US 523 (1911).

(26) Tyler v The Judges ,179 US 405 (1900).

(27) Hendrick v Maryland, 235 US 610 (1915).

(28) Columbus & Greenville Rly Co v Miller, 283 US 96.

(29) Fairchild v Hughes, 258 US 126 (1922).

(30) Crowell v Benson, 285 US 22 (1932).

(31) Bilson v Apaloo [1981] GLR 24.

(32) Connecticut General Life Insurance Co v Johnson, 303 US 77 (1938).

(33) Wheeling Steel Corp v Glander, 337 US 562 (1949).

(34) Benneh v The Republic [1974] 2 GLR 47, CA (full bench).

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

(36) Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598, SC.

[p.384] of [1997-98] 1 GLR 378

(37) In re Agyepong (Decd); Donkor v Agyepong [1973] 1 GLR 326, CA.

(38) Youhana v Abboud [1974] 2 GLR 201, CA.

(39) People’s Popular Party v Attorney-General [1971] 1 GLR 138.

(40) New Patriotic Party v Inspector-General of Police [1993-94] 2 GLR 459, SC.

(41) Osman v Kaleo (1970) 2 G & G 512, CA.

(42) Pennie v Egale [1980] GLR 234.

(43) Okorie alias Ozuzu v The Republic [1974] 2 GLR 272, CA.

NATURE OF PROCEEDINGS

APPLICATION under article 2(1) of the Constitution, 1992 for a declaration that the Council of Indigenous Business Associations Law, 1993 (PNDCL 312) is inconsistent with and in contravention of the Constitution, 1992 especially articles 21(1)(e), 35(1) and 37(2)(a) and (3). The facts are sufficiently stated in the judgment of Bamford-Addo JSC.

COUNSEL

Peter Ala Adjetey for the plaintiff.

Martin Amidu, Deputy Attorney-General, for the defendant.

JUDGMENT OF BAMFORD-ADDO JSC.

The plaintiff, the New Patriotic Party, a political party registered under the laws of Ghana as a body corporate, issued a writ to invoke the original jurisdiction under articles 2(1) and 130 of the Constitution, 1992 for a declaration that:

“(1) The Council of Indigenous Business Associations Law, 1993 (PNDCL 312) is inconsistent with and a contravention of, the Constitution, especially articles 21(1)(e), 35(1), 37(2)(a) and (3), and that consequently, to the extent of such inconsistency, the said PNDCL 312 is void.

(2) Consequential orders in exercise of this honorable court’s jurisdiction under article 2(2) of the Constitution, 1992 prohibiting the Government of Ghana from any agency of the Government of Ghana from interfering with the constitutional freedom of association guaran

[p.385] of [1997-98] 1 GLR 378 eed to the persons and organisations covered by the said PNDCL 312, including an order that all state funds made available to the council under PNDCL 312 should be refunded to government chest.” The Attorney-General raised a preliminary issue to the effect that the New Patriotic Party has no capacity or locus to commence an action under article 2(1) of the Constitution, 1992 on the ground that only a natural person can bring such an action. Article 2(1) of the Constitution, 1992 provides: “2. (1) A person who alleges that—

(a) an enactment or anything contained in or done under the authority of that or any other enactment; or

(b) any act or omission of any person; is consistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

The defendant submitted that the word “person” in the context in which it appears must be given its ordinary, plain and grammatical meaning, to mean only a natural person, no more. That the Interpretation Act 1960 (CA 4) has no relevance in the interpretation of the word “person” in article 2(1) of the Constitution, 1992 since the context in which it appears would not permit the wide definition of “person“ provided in CA 4.

This argument seems to ignore the proper role of CA 4 in this country, which is that unless the contrary intention appears in any enactment, the interpretation of words provided in CA 4 ought to be applied, except where the context in which the word was used would not permit such an interpretation or where the enactment itself provides an interpretation of any particular words used therein. Therefore if the definition of the word “person” in CA 4, s 32 fits the context in which that word was used in article 2(1) of the Constitution, 1992, that meaning ought to be applied. A “person” is defined in CA 4, s 32 thus: “Person includes a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons as well as an individual.”

[p.386] of [1997-98] 1 GLR 378

Since in my view this meaning fits the context in which “person” is used in article 2(1) of the Constitution, 1992, there is no necessity for applying the canons of statutory interpretation suggested by the plaintiff, namely that that word must be given its ordinary grammatical meaning, and therefore I find resort to the canons of interpretation completely unnecessary in this case.

I had occasion in the case of the Ghana Bar Association v Attorney-General, [1994-95] GBR 290, SC, to interpret the word “person” in article 2(1) of the Constitution, 1992 to comply with the definition of that word provided in CA 4. Since the issue has come up again in this case with the defendant arguing that, that meaning does not fit the context in article 2(1), I think that there is need for me to consider the defendant’s arguments in this case again, and to give a full and a definitive ruling on this issue. Interpreting a Constitution is not the same as interpreting an ordinary statute. The Constitution is a political and meaningful document which requires a broad and liberal interpretation; its voice carries higher than that of an ordinary legislation and its pronouncements must be given as full and as wide effect as possible. Some constitutional rules of interpretation have been laid down and applied in this country, which requires that the provisions of the Constitution be given a liberal and broad meaning, rather than a narrow or doctrinaire one, to suit the changing social and political development of the nation. The oft-quoted rules of constitutional interpretation were forcefully enunciated by Sowah JSC (as he then was) in the case of Tuffour v Attorney General [1980] GLR 637 at 647-648, CA sitting as SC thus: “A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller life.

The Constitution has its letter of the law. Equally, the Constitution has its spirit … Its language, therefore, must be considered as if it were a living organism capable of growth and development … A broad and liberal spirit is required

[p.387] of [1997-98] 1 GLR 378 for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time.”

This rule of interpretation has been applied to many constitutional cases by the Supreme Court: see Republic v High Court, Accra, Ex parte Adjei in [1984-86] 2 GLR 511 at 518-519, SC where Sowah CJ stated again that:

“ … the narrow rules of construction applicable in cases of contracts, wills, statutes and ordinary legislation may or may not be adequate when it comes to the interpretation of a Constitution or law intended to govern the body politic . . . Our interpretation should therefore match the hopes and aspirations of our society and our predominant consideration is to make the administration of justice work.”

It is in this light that I would endeavour to interpret the word “person” in article 2(1) of the Constitution 1992 which deals with enforcement of the Constitution.

As specified in articles 3(4)(a) and 41(b) of the Constitution, 1992 it is the duty of every citizen to defend and uphold the Constitution. Article 41 of the Constitution, 1992 states:

“41. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen—…

(b) to uphold and defend this Constitution and the law.”

Since rights and freedoms can be enjoyed by both natural as well as legal persons under the Constitution the duty to defend same through the enforcement procedure under article 2(1) of the Constitution, 1992 should be assured to all classes of persons, natural or legal. That legal persons are within the contemplation of the Constitution, 1992 in certain applicable cases, is evident in article 12 which requires that certain specified persons including “natural and legal persons in Ghana” should respect and uphold [p.388] of [1997-98] 1 GLR 378 the fundamental human rights and freedoms enshrined in chapter 5 of the Constitution, 1992. It follows that proceedings can be taken in court against all such persons for the enforcement of the fundamental rights and freedoms in chapter 5. If this is possible, why should it not be possible for legal persons to also institute proceeding for the enforcement of their rights and freedoms under the Constitution, 1992 where applicable? For instance under article 18 of the Constitution, 1992: “Every person has the right to own property either alone or in association with others.”

In such a case, where a property owned by a corporation is interfered with under subsection (2) thereof, would that corporation not be entitled to go to court for enforcement under either article 33 or under article 2(1) of the Constitution, 1992 for the interpretation of any enactment which adversely affects its property rights? I submit it can. And under such circumstances would it be correct to say that the word “person” as appearing in article 18(1) and (2) of the Constitution, 1992 should be interpreted to mean only a natural person, or that the word “person” thereunder must be given its plain and grammatical meaning as it is being suggested by the defendant in the case of article 2(1), where the word person appears? To accept this argument would be to give the word “person” in article 18 of the Constitution, 1992 a narrow meaning contrary to the rules of constitutional interpretation given in Tuffuor v Attorney-General (supra). Also to interpret the word “person” in article 2(1) of the Constitution, 1992 as suggested by the defendant would be contrary to the intention of the drafters of the Constitution as appears in the Report of the Committee of Experts on Proposals for a Draft Constitution of Ghana (hereinafter referred to as the “Report”), para 360, at p 163 which deals with the role of the people in the enforcement of the Constitution and which states:

“Par 360. While various institutions may play their respective roles in the enforcement of the

Constitution, the final arbiter of the viability of the, constitutional order is the people of Ghana. No constitutional development mechanism can be more potent than the resolute and passionate commitment of the people to the entirety of the

[p.389] of [1997-98] 1 GLR 378

Constitutional regime itself. The prospects of constitutional stability will only be assured when the people of Ghana sufficiently identify themselves with the Constitution to resist massive violations of a total subversion of the fundamental law of the land. In short the sovereignty of the people means that ultimately the respective enforcement of the Constitution rests with the people themselves.” (The emphasis is mine.)

It is evident from this passage that a very wide effect was intended to enable all persons to resort to judicial review for the enforcement of the Constitution, 1992. Therefore under article 2(1) of the Constitution, 1992 other than the citizenship requirement, no limitation is placed on the nature of persons who may invoke the original jurisdiction of the Supreme Court. If this be the case then it seems to me that there would be no logical reason for restricting the resort to the original jurisdiction of this court to only natural persons. On the contrary, it would be more beneficial and in accordance with the intention of the framers of the Constitution and in the public interest to open the door widely to permit both natural and legal persons, like the plaintiff, access to the court. I would think that corporate bodies by reason of their important place in society are most suited both financially and otherwise to undertake the defence of the constitutional order by resort to judicial review when the constitutional order is being threatened. In the case of a corporation seeking redress, see Attorney-General v Antigua Times [1976] AC 16 where the meaning of “person” in the Constitution of Antigua was considered. It was held, as stated in the headnote: “(1) that there was nothing in the context of the Constitution to exclude artificial persons in so far as they were capable of enjoying the fundamental rights and freedoms protected by the Constitution; that ‘any person’ in section 5 included a body corporate and, accordingly, the respondent was entitled to apply to the High Court for redress under the section and the appellants’ preliminary objection failed.”

[p.390] of [1997-98] 1 GLR 378

In that case the respondent complained that certain Acts were unconstitutional and applied to the High Court of Antigua for redress under section 15 of the Constitution. Section 15(1) provides: “If any person alleges that any of the provisions of sections 2 to 14 (inclusive) of this Constitution has been, or is being, contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.” The appellants contended that the word “person” occurring twice in that subsection referred only to a natural person. The respondent contended that the word included also an artificial or legal person such as itself. The Interpretation Act, 1889, which was applied to the Constitution by section 15(15) of the Constitution, provides by section 19: “ … the expression ‘person’ shall, unless the contrary intention appears, include any body of persons corporate or unincorporated … “ According to the court, it was therefore necessary to consider the context in which the word “person” occurred. In that case it was argued that the redress given by the Constitution of Antigua to a “person” was not available to a corporation. Lord Fraser of Tullybelton delivering the judgment of the board said at 25 that: “Having regard to the important place in the economic life, of society by corporate bodies, it would seem natural for such a modern Constitution, dealing with, inter alia, rights to property, to use the word

‘person’ to include corporations.”

Attorney-General v Antigua Times (supra) was considered by the Privy Council in Societe United Docks v Government of Mauritius [1985] LRC (Const) 801. Lord Templeman who delivered the judgment of the board, after referring to the dictum of Lord Fraser of Tullybelton supra, said at 842: “On the present appeals it was suggested on behalf of the Government of Mauritius that a different result should follow in the present case because section 3 of the [p.391] of [1997-98] 1 GLR 378

Constitution of Mauritius referred to the right of the ‘individual’. But no logical distinction can be drawn between the individual protected by section 3 and ‘the person’ protected by the remaining sections of Chapter 11 of the Constitution. Both expressions include a corporation where the context so allows, as it does in the present instance.”

I also agree with the dictum of Lord Fraser of Tullybelton in Attorney-General v Antigua Times (supra) which has much persuasive value in my opinion, and is similar to this case. It is my view that the broad meaning given to the word “person” in that case, accords with the definition of person provided in our own CA 4, s 32. I am fortified in this view, in that article 297(e) of the Constitution, 1992 itself in effect defines the word “person” in the same way as CA 4, s 32. Article 297 of the Constitution, 1992 provides that: “words importing male persons include female persons and corporations.” (The emphasis is mine.) In my view the word “person” in article 2(1) of the Constitution, 1992 should be given the meaning provided both by article 297 and section 32 of CA 4 to include a natural as well as a legal person or a corporate body such as the New Patriotic Party. I accordingly, hold that the plaintiff has locus in this case. The plaintiff and the defendant together filed a memorandum of agreed issues which sets out certain matters for determination in this suit as follows:

“(1) whether or not the Council of Indigenous Business Associations Law, 1993 (PNDCL 312) is inconsistent with and a contravention of the letter and spirit of the Constitution and in particular articles 21(1)(e), 35(1), 37(2)(a) and (3) thereof;

(2) whether or not articles 35(1), 37(2)(a) and (3) which fall under chapter 6 of the Constitution, 1992 are justiciable;

(3) whether or not the appropriation of public funds to the Council for Indigenous Business Associations set up under PNDCL 312 is consistent with the Constitution, 1992 both in its letter and spirit;

[p.392] of [1997-98] 1 GLR 378

(4) whether or not the United Nations Universal Declaration of Human Rights and the African Charter on Human and Peoples Rights are binding on the states signatories including Ghana; and if so,

(5) whether or not Ghanaian municipal law can overrule the provisions of the said international instruments; and if so,

(6) to what extent are the said declaration and charter binding on Ghana.”

The nature and function of the provisions under chapter 6 of the Constitution, 1992, namely the Directive Principles of State Policy is as stated specifically in article 34, namely:

“34. (1) The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society.”

(The emphasis is mine.) As is unequivocally stated, they are for the guidance only of all citizens and the persons specified therein, including political parties. In respect of the judiciary they are to guide the courts which should apply them in their interpretative duty.

The question which should be posed is whether the provisions of chapter 6 have any separate existence of their own, ie whether they are of and by themselves justiciable or enforceable? Most of those provisions relate to the enjoyment of the guaranteed fundamental rights and freedoms set out in chapter 5 of the Constitution, 1992. As stated by the drafters of the Constitution, 1992 the directive principles have no separate existence; they are measures by which laws are judged for constitutionality and they afford a yardstick by which policy decisions are to be taken and implemented for the establishment of a just and free society. This means that until they are read and applied in conjunction with any substantive guaranteed human rights and freedoms set out in

[p.393] of [1997-98] 1 GLR 378 chapter 5 of the Constitution, 1992, they remain only guidelines, and are not enforceable rights by themselves, see the Report para 96, at p 49 where it is stated:

“Par 95. By tradition Directive Principles are not justiciable; even so, there are at least two good reasons for including them in a Constitution. First, Directive Principles enunciate a set of fundamental objectives which a people expect all bodies and persons that make or execute public policy to strive to achieve. In the present proposals, one novelty is the explicit inclusion of political parties among the bodies expected to observe the principles. The reason for this is that political parties significantly influence government policy. A second justification for including Directive Principles in a Constitution is that, taken together, they constitute, in the long run, a sort of barometer by which the people could measure the performance of their government. In effect they provide goals for legislative programmes and guide for judicial interpretation.

96. On the basis of the foregoing considerations, the Committee proposes as follows: The Directive Principles of State Policy are for the guidance of Parliament, the President the Council of Ministers, Political Parties and other bodies and persons in making and applying public policy for the establishment of a just and free society. The Principles should not of and by themselves be legally enforceable by any Court. The Courts should, however, have regard to the said Principles in interpreting any laws based on them.

97. In view of the fact that the Principles are not justiciable, it becomes necessary to provide a standing reminder to an incumbent Government that it is expected to take necessary measures to achieve them. For this purpose, the Committee considered it adequate to adopt the provision in the 1979 Constitution stipulating that, at least once a year, the Government should report to Parliament all the steps it has taken towards achieving the policy objectives; particularly, towards the realization of a healthy economy, the right to work, the right to good health care and the right to education.”

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(The emphasis is mine.) In general therefore it is correct to say that the directive principles are principles of state policy which taken together constitute a sort of barometer by which the people can measure the performance of their government. That they provide goals for legislature programmes and a guide for judicial interpretation but are not of and by themselves legally enforceable by any court. However, there are exceptions to this general principle. Since the courts are mandated to apply them in their interpretative duty, when they are read together or in conjunction with other enforceable parts of the Constitution, 1992, they then in that sense, become enforceable. But as clearly explained in the Report, standing independently they are not justiciable: see also article 34 of the Constitution, 1992. Every provision of the Constitution, 1992 has meaning and effect and therefore it would be wrong to ignore or disregard clear constitutional dictates. Apart from the above stated requirement for enforceability of most of the provisions of chapter 6 of the Constitution, 1992, there are particular instances where some provisions of the directive principles form an integral part of some of the enforceable rights either because they qualify them or can be held to be rights in themselves. In those instances they are of themselves justiciable also. It is my view that where provisions under chapter 6 of the Constitution, 1992 are made independent rights either by specific words or by necessary implication they become of themselves justiciable rights. This present case provides a good example of the special case where a provision under chapter 6 of the Constitution, 1992 can be said to be an enforceable right. Article 37(2) (a) and (3) of the Constitution, 1992 regarding associations, read together with article 21(e) of the Constitution, 1992 undoubtedly mean that every person in Ghana has “the freedom of association free from state interference.” If the correctness of this assertion is challenged on the ground that if so, then that right would have been included in chapter 5 of the Constitution, 1992, my answer would be to direct attention to the specific words and their import as used in article 37(2)(a) and (3) of the Constitution, 1992 which states:

“(2) The State shall enact appropriate laws to assure— [p.395] of [1997-98] 1 GLR 378

(a) the enjoyment of rights of effective participation in development processes including rights of people to form their own associations free from state interference and to use them to promote and protect their interest in relation to development processes, rights of access to agencies and officials of the State necessary in order to realise effective participation in development processes; freedom to form organizations to engage in self-help and income generating projects; and freedom to raise funds to support those activities; …

(3) In the discharge of the obligations stated in clause (2) of this article, the State shall be guided by international human rights instruments which recognize and apply particular categories of basic human rights to development processes.”

(The emphasis is mine.) The words “rights of people to form their own associations free from state interference” in article 37(2)(a) of the Constitution, 1992 can only mean what they clearly say. In effect it creates a “right” and can be held as a qualification of article 21(e) of the Constitution, 1992 in respect of the freedom of association protected under article 33 of the Constitution, 1992 though it does not come under chapter 5.

Articles 37(3) and 33(5) of the Constitution, 1992 buttress this view. Article 33(5) of the Constitution, 1992 provides:

“(5) The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.”

(The emphasis is mine.) The chapter referred to is chapter 5 of the Constitution, 1992, consequently the fact that a right does not come under chapter 5 dues not preclude it from being a guaranteed and justiciable fundamental human right. A further justification for

[p.396] of [1997-98] 1 GLR 378 my view can be found in paragraph 139 at page 65, chap 5 of the Report on the “Fundamental Human Rights and Freedoms” which provides:

“Par 139. The Committee also elaborated the social and economic aspects of human right—aspects which are of particular relevance to the conditions of Africa and the developing world generally. Some of these rights are included in the proposed Directive Principles of State Policy, except that here they are more precisely elaborated as rights. In addition, the Committee also proposes specific provisions relating to the rights of categories of persons whose situation calls for special guarantees and protection in the Constitution.”

(The emphasis is mine.) This means that some enforceable rights, such as the right of “the freedom to form associations free from state interference” can be found in chapter 6 though not in chapter 5. In the case of New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC, I echoed the relevant parts of the Report to support my general observation that the directive principles are not justiciable. That statement was made while considering some articles under chapter 6 of the Constitution, 1992 which the plaintiff in that case was relying upon in support of his case. My said statement should be qualified to mean that in general the directive principles standing by themselves are not justiciable as the relevant part of the Report which I quoted therein clearly state. In that case I did not dismiss the suit but went on to consider those provisions of the directive principles relied upon by the plaintiff, in interpreting the Public Holidays Law, 1989 (PNDCL 220) vis-à-vis the Constitution, 1992: On that occasion justiciability of the directive principles was not an issue for determination and was not therefore fully argued as has been done in this case before us now. Having now fully considered the arguments on both sides on this issue, I am of the firm view that as stated in the Report, and quoted by me in the above mentioned case, the principles are generally “of and by themselves” not justiciable. However, the necessary implication in those emphasised words “of and by

[p.397] of [1997-98] 1 GLR 378 themselves”, as I explained before, implies that where those principles are read in conjunction with other enforceable provisions of the Constitution, 1992 by reason of the fact that the courts are mandated to apply them, they are justiciable. Further, where any provision under chapter 6 of the Constitution, 1992 dealing with the directive principles can be interpreted to mean the creation of a legal right, ie a guaranteed fundamental human right as was done in article 37(2)(a) of the Constitution, 1992 regarding the freedom to form associations, they become justiciable and protected by the Constitution, 1992. In conclusion, having regard to the above stated criteria or test for justiciability of any particular provision under chapter 6 of the Constitution, 1992 it is my view that each case would depend on its peculiar facts and on the facts of this case article 37(2)(a) of the Constitution regarding the freedom to form an association free from state interference is a right which is justiciable.

It was the submission by the defendant concerning the provision of article 37(3) of the Constitution, 1992 which states that, in the exercise of its duties under article 37(2) of the Constitution, 1992 the State must be guided by certain relevant international instruments, that unless those instruments have been ratified so as to become part of the municipal law they would be inapplicable. I am not persuaded by this argument. The dictates of a Constitution, the supreme law cannot be superseded by any municipal law: see article 1(2) of the Constitution, 1992, and therefore whether or not the said instruments have been ratified by

Ghana under article 75, the provisions of article 37(3) of the Constitution, 1992 must be applied by the courts in their interpretative duties.

Now, to the merits of the case. The case of the plaintiff is that the Council of Indigenous Business Association Law, 1993 (PNDCL 312) is inconsistent with and a contravention of the letter and spirit of articles 21(1)(e), 35(1) and 37(2)(a) and (3) thereof. It would be convenient to set out the various relevant provisions of the impugned law for convenience and ease of reference:

“2. (1) The Council shall consist of—

(a) two representatives of each Association registered with the Council; [p.398] of [1997-98] 1 GLR 378

(b) a representative of the Ministry of Mobilization and Social Welfare; and

(c) the Executive Secretary and National Treasurer of the Council appointed under section 6 of this Law.

3. The Council shall have the following functions to—

(a) register applicants under this Law;

(b) monitor the operations of the registered associations with a view to recommending improvements;

(c) foster harmony and understanding among member associations;

(d) provide such information and advice on matters relating to the interests of member associations as they may request;

(e) act as the representative of member associations in any negotiations with the Government.

4. (1) The associations specified in the schedule to this Law shall be registered with the Council.

(2) There shall also be registered with the Council such associations of Ghanaian indigenous business as the Secretary may approve.

(3) Application for registration shall be made in such form as the Council may after consultation with the Secretary direct.

(4) The Council shall on the registration of the association under this Law, issue it with a certificate of registration.

(5) There shall be paid in respect of each registration such fee as the Secretary may prescribe.

5. (1) The Council shall have an Executive Committee; composed of the following persons—

(a) the Chairman of the Council who shall be the chairman of the Executive

Committee;

(b) the Executive Secretary;

(c) the National Treasurer; and

(d) three other members of the Council appointed by the Council from among their number.

[p.399] of [1997-98] 1 GLR 378

6. (1) There shall be appointed by the Secretary in consultation with the Council an Executive

Secretary of the Council.

(2) The Executive Secretary shall under the direction of the Executive Committee be responsible for the day to day administration of the business and. affairs of the Council.

(3) The Council shall have a national treasurer who shall be appointed by the Secretary in consultation with the Council.

(4) The appointment of the Executive Secretary and the national treasurer shall be made on such terms and conditions as the Secretary in consultation with the Public Services Commission shall determine.

13. The Secretary may by legislative instrument make regulations; …

(b) to provide generally for the effective implementation of this Law.

14. In this Law ‘Secretary’ means the P.N.D.C. Secretary responsible for Mobilization and Social

Welfare.

SCHEDULE

Section 4

Ghana National Association of Garages

National Drinking Bar-Operators Association

Ghana Hairdressers and Beauticians Association

Ghana National Tailors and Dressmakers Association

Ghana Co-operative Bakers Association

Federation of Ghanaian Jewelers

National Association of Refrigeration Mechanics

National Association of Traditional Healers

Federation of Market Women

Ghana National Traditional Caterers Association.”

The PNDC Secretary referred to in section 14 of PNDCL 312 is now the minister of state responsible for the said portfolio in this constitutional era. PNDCL 312 established a council made up of the representatives of each of the ten associations listed in the schedule; a representative of the Ministry of Mobilization and

[p.400] of [1997-98] 1 GLR 378

Social Welfare; and the executive secretary and national treasurer both of whom are appointed by the minister in consultation with the council. It is this executive secretary who shall under the direction of the executive committee be responsible for the day to day administration of the business of the council. It is the minister who by legislative instrument would make regulations to provide generally for the effective implementation of the Law and he appoints key officers etc. As can be seen, the minister of state has in effect almost absolute control of the council. It is in this light that the function of the council in section 3(b) of PNDCL 312, namely “to monitor the operations of the registered associations with a view to recommending improvements”, should be considered.

The word “monitor” according to Longmans Dictionary of Contemporary English is “to carefully watch and check a situation in order to see how it changes or progresses over a period of time.” To “interfere” also has been defined in the same dictionary thus “to deliberately get involved in a situation that does not concern you and try to influence what happens in a way that annoys people.” Considering the definition provided above, monitoring of the CIBA association’s affairs necessarily involves and results in interfering in its affairs by a minister of state who in effect controls the CIBA Council. This is a violation of articles 21(e) and 37(2)(a) of the Constitution, 1992 regarding the right of freedom of association free from state interference. Surely, it is a clear case of interference for a minister of state who is not a member of say the Hairdressers and Beauticians Association, to through his representatives and appointees and through his own powers under PNDCL 312 “monitor the affairs of the association with a view to recommending improvements.” This undoubtedly, is an erosion of the freedom of association which the Constitution, 1992 seeks to prevent in articles 21(e) and 37(2)(a).

It was submitted by the defendant that PNDCL 312 was enacted upon the petition of the associations concerned, mentioned in the schedule to the Law, to enable them to freely operate under the umbrella of a council similar to the Trades Union Congress. This contention is totally irrelevant to a consideration of the question as to whether the Law as it stands violates the freedom of association of those organisations. It has been said that in testing

[p.401] of [1997-98] 1 GLR 378 any law for constitutionality the court should not concern itself with the propriety or expediency of that impugned law but what the law itself provides. Lord Diplock stated in Hinds v R [1976] All ER 353 at 361, a Jamaican case, that:

“So in deciding whether any provisions of a law passed by the Parliament of Jamaica as an ordinary law are inconsistent with the Constitution of Jamaica, neither the courts of Jamaica nor their Lordships’ Board are concerned with the propriety or expediency of the law impugned. They are concerned solely with whether those provisions, however reasonable and expedient, are of such a character that they conflict with an entrenched provision of the Constitution and so can be validly passed … “ As can be seen, the fact that the organisations mentioned in section 4 of the Schedule to PNDCL 312 themselves requested the enactment of that Law, would not obviate the necessity for the requirement that the Law should pass the constitutional test. It has been said that “the highest motives and the best of intentions are not enough to displace constitutional obstacles”: see the Malaysia case of Dewan Undangan Negeri Kelantan v Nordin bin Salleit (1992) 1 Malaysian Law Journal 697 (SC).

Quite apart from the repugnancy of section 3(b) of PNDCL 312 there, is also section 4 thereof. This section compels the listed organisations to register with the council under PNDCL 312. It is immaterial that those mandated to register are organisations, since those organisations are composed of individual persons with rights of freedom of association. Freedom of association means freedom of people to voluntarily join together to form associations for the protection of their interests free from state interference. This freedom is effectively taken away in this case by the compulsion of the stated organisations to join CIBA under section 4 of PNDCL 312 which is not a regulatory law permitted under the Constitution, 1992: see the case of Mensima v Attorney-General [1997-98] 1 GLR 159, SC where I discussed regulatory laws permitted under the Constitution, 1992. Coercion implies some negation of choice and voluntariness and therefore section 4 of PNDCL 312 offends against article 21(e) and 37(2)(a) of the

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Constitution, 1992. Furthermore, since the freedom to associate implies the right to dissociate, failure to provide the manner of leaving CIBA by the registered associations would tend to support the view that section 4 of PNDCL 312 takes away the freedom of the concerned members of the specified associations mentioned in the schedule, to freely associate with others, a violation of article 21(e) of the Constitution, 1992. Admittedly, the State can pass laws such as those specified in article 37(2)(a) of the Constitution, 1992, but sections 3(b) and 4 of PNDCL 312 are not the type of laws permitted thereunder; indeed they are prohibited under article 37(2)(a) of the Constitution, 1992 as an undue interference with the operation and administration of those associations by the State through a state official as discussed above in this case.

Quite clearly, sections 3(b) and 4 of PNDCL 312 fail to meet the standards required in articles 21(e) and 37(2)(a) of the Constitution, 1992, but other than those two sections, the rest of that Law is valid and constitutional and is the sort of law permitted under article 37(2)(a) of the Constitution, 1992. I have in the interpretation of PNDCL 312 been guided by the rules of constitutional interpretation stated above and in such manner as to enable all citizens to enjoy their constitutional rights and freedoms effectively, and in the fullest measure as envisaged by the Constitution, 1992.

In conclusion, I hold that sections 3(b) and 4 of PNDCL 312 are unconstitutional and must be struck down as null and void. Apart from this, PNDCL 312 remains valid. I would give judgment in favour of the plaintiff to the extent indicated above. However, apart from sections 3(b) and 4, PNDCL 312 is on the whole valid and passes the constitutional test and consequently, the order claimed by the plaintiff, “that all state funds made available to the council set up under PNDCL 312 be refunded to government chest”, would be refused.

JUDGMENT OF AMPIAH JSC.

The plaintiff, a registered political party, invokes the original jurisdiction of this court under articles 1(2), 2(1)(a) and (2), 21(1)(e), 35(1), 37(2)(a) and (3) of the Constitution, 1992. It comes under rule 45 of the Supreme Court Rules, 1970 (CI 13), now rule 45 of the Supreme Court Rules, 1996 (CI 16). [p.403] of [1997-98] 1 GLR 378

Article 1(2) of the Constitution, 1992 makes the Constitution the supreme law of Ghana and provides that: “ … any other law found to be inconsistent with any provision of the Constitution shall, to the extent of the inconsistency, be void.” And, article 2(1)(a) of the Constitution, 1992 provides: “2. (1) A person who alleges that—

(a) an enactment or anything contained in or done, under the authority of that or any other enactment; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

(The emphasis mine.) On the strength of these provisions the plaintiff seeks:

“(1) A declaration that the Council of Indigenous Business Associations Law, 1993 (PNDCL 312) is inconsistent with, and a contravention of the Constitution, especially articles 21(1)(e), 35(1), 37(2)(a) and (3) of the Constitution and that consequently, to the extent of such inconsistency, the said PNDCL 312 is void.

(2) Consequential orders in exercise of this honourable court’s jurisdiction under article 2(2) of the Constitution, 1992 prohibiting the Government of Ghana or any agency of the Government of Ghana from interfering with the constitutional freedom of association guaranteed to the persons and organisations covered by the said PNDCL 312, including an order that all state funds available to the council set up under PNDCL 312 should be refunded to government chest.”

A joint memorandum filed by counsel for the parties set down the agreed issues for determination by the court after the parties had filed their respective statements of their case. However, on 18 November 1996, counsel for the defendant filed a supplementary submission pursuant to an order of the court dated 12 November 1996 in which he raised the issue, “Whether or not the New Patriotic Party has capacity to commence an action under article

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2(1) of the Constitution.” Counsel for the plaintiff joined issue with the defendant. Thus, apart from the main issues touching on the merits of the case, two questions, fundamental to the maintenance of the action, were raised for determination. First, as to whether or not the plaintiff has capacity to commence the action and secondly, whether or not articles 35(1), 37(2)(a) and (3) which fall under chapter 6 of the Constitution, 1992 are justiciable.

The principle of law is that where the issue of capacity is raised, it is necessary to resolve that issue first before determining the issues of merit in the case, for, if there is lack of capacity, determination of the merits in the action is likely to prejudice the rights of a person with capacity in a subsequent action. In this wise, I intend to deal with the issue of capacity of the plaintiff before touching on the issues of merit if that becomes necessary.

Article 2(1) of the Constitution, 1992 provides:

“2. (1) A person who alleges that—

(a) an enactment or anything contained in or done under the authority of that or any other enactment … is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

(The emphasis is mine.) The question is, who is that person in the context of this provision? It is the contention of counsel for the defendant that the person referred to in the article could only be a “human being” which is the ordinary and unambiguous meaning of the word and gives no room for other interpretations. That is so, he continues, because any consequential orders emanating from any declarations to be made by the court under the said article can only be enforced against a human being. The plaintiff’s counsel on the other hand contends that the word “person” should be given a wider meaning to cover non-human beings, especially when the Constitution, 1992 itself does not define the word. He contends further that since laws could be made to affect persons or a group of persons of which a political party is one, the word “person” should include both natural and artificial persons. [p.405] of [1997-98] 1 GLR 378

The word “person” or “persons” appears in various or several provisions of the Constitution, 1992. While most modern statutes may contain an interpretation or definition section in which is declared the meaning which certain words and expressions are to, or may, bear or include for the purposes of the statute in question, it might as a matter of drafting, be used for interpreting words which are ambiguous or equivocal only and not so as to give an artificial meaning to words the ordinary meaning of which is plain. An interpretation section does not necessarily apply in all the possible contexts in which a word may be found in the statute. The word “person” is not defined either in the article in question or in the

Constitution, 1992 itself. The words of a statute must in general be taken in their ordinary sense: see Robertson v French (1803) 4 East 130 at 135, notwithstanding the fact that such a construction may appear not to carry out the view which it may be supposed the framers intended to carry out; but if the provisions and expressions are contradictory, and there are grounds appearing on the face of the instrument affording proof of the real intention of the framers, the intention will prevail against the obvious and ordinary meaning of the words: see Lloyd v Lloyd (1837) 2 My and Cr 192 at 202. There is no rule that the same meaning ought to be given to an expression in every part of the document in which it appears. So much regard must not be paid to the natural and proper meaning of the word as to pervert the intention of the parties. The dominant purpose in construing a statute is to ascertain the intention of the legislature as so expressed. The intention, and therefore the meaning of the statute is primarily to be sought in the words used in the statute itself. It is permissible in ascertaining the ordinary sense of particular words to refer to dictionaries and the words of standard authors which show what that sense was when the statute was passed. Dictionaries cannot, however, be regarded as authorities on the meaning of words used in a statute where those words have been the subject of judicial interpretation. Although the words of a statute are normally to be construed in their ordinary meaning, due regard must be had to their subject matter and object, and to the occasion in which the circumstances with reference to which they are used and they should be construed in the light of their context rather than in [p.406] of [1997-98] 1 GLR 378 what may be either their strict etymological sense or their popular meaning apart from the context. Various dictionaries define “person” to include not only human beings and individuals, but also incorporated and unincorporated groups having certain legal rights and responsibilities. Our Interpretation Act, 1960 (CA 4), s 2 defines “persons” as including—”… a body corporate (whether a corporation aggregate or a corporation sole) and an incorporated body of persons as well as an individual.” In Earl Jowitt’s The Dictionary of English Law, at p 1334 “person” is defined as:

“In jurisprudence, a person is the object of rights and duties, that is, capable of having rights and of being liable to duties, while a thing is the subject of rights and duties.

Persons are of two kinds, natural and artificial. A natural person is a human being . . . Artificial persons include a collection or succession of natural persons forming a corporation; and, in some systems, a collection of property to which the law attributes the capacity of having rights and duties … In the construction of an Act of Parliament, the word ‘person’ includes a body corporate if the Act relates to an offence punishable summarily or on indictment, and includes any body of persons corporate or unincorporate if the Act relates to any other subject, unless in either case a contrary intention appears (Interpretation Act, 1889, ss. 3, 19).”

The Constitution, 1992 provides for the establishment of political parties. These consist of groups of Ghanaian citizens of voting age. Section 3(3) of the political parties Law, 1992 (PNDL 281) states: “A political party registered under this Law shall be a body corporate and shall have perpetual succession and may sue and be sued in its corporate name.” (The emphasis is mine.) Both the Constitution, 1992 and PNDC 281 impose certain obligations and grant rights to the political parties properly registered under the Law. While counsel for the defendant does not deny the right of these political parties to sue and be sued, he contends that under article 2 of the Constitution, 1992, only personal rights as opposed [p.407] of [1997-98] 1 GLR 378 to public rights should be the criterion for determining which persons can commence proceedings under it, and that even then such rights must have accrued. In the instant case, the plaintiff does not pursue a personal or private right nor could it be said that any of its rights have been infringed. In other words, the plaintiff cannot be said to be an aggrieved person. This court, he continues, cannot be called upon just to decide a right which has not accrued, besides, this court is not there to give advisory opinion. He differentiates between the cases of the New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC; Tuffour v Attorney-General [1980] GLR 637, CA sitting as SC; New Patriotic Party v Electoral Commission [1993-94] 1 GLR 124, SC—all Supreme Court cases—where the Supreme Court accepted the plaintiff’s capacity to sue because its rights had been infringed or there was an attempt to infringe them and, the instant case, where no such personal right is alleged to have been infringed. It is true that the plaintiff in the instant case has not alleged a violation of its personal rights, but under article 2(1), the Constitution, 1992 gives a right to any person who alleges that, “… an enactment or anything contained in or done, under the authority of that or any other enactment is … inconsistent with, or is in contravention of a provision of this Constitution, … to bring an action for a declaration to that effect.”

As stated before, the plaintiff is a political party of persons who have been given rights and obligations under the Constitution, 1992. The Constitution, 1992 enjoins all citizens of Ghana to defend the Constitution—vide article 3(4)(a). The Constitution, 1992 is made for “We the people of Ghana”; see the preamble to the Constitution, 1992. This is a public duty placed by the Constitution, 1992 on all persons whether as individuals or as a group. The plaintiff has an obligation under the Constitution, 1992 to assert its right or generally to challenge acts which are inconsistent with or are in contravention of provisions affecting it or any of its members or of the public at large.

In his book, The Discipline of Law, at pp 116-117, Lord Denning observed:

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“The tendency in the past was to limit them to persons who had a particular grievance of their own over and above the rest of the public. But in recent years there has been a remarkable series of cases in which private persons have come to the Court and have been heard. There is now a much wider concept of locus standi when complaint is made against a public authority. It extends to anyone who is not a mere busybody but is coming to the court on behalf of the public at large.”

Of course, where there is a violation of a particular right and there is a request for its enforcement, the courts have held that it is the High Court which has that jurisdiction to adjudicate on the issue. And, in that respect article 33(1) of the Constitution, 1992 requires that:

33. (1) Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.” But, where the action is for a mere declaration as to the contravention of or inconsistency with a provision of the Constitution, 1992 then any person, including the plaintiff—a body of persons recognised under the Constitution—has a right to seek that declaration. It is my considered opinion, therefore, that in the context in which the word person is used, the plaintiff has locus standi to maintain an action under article 2(1)(a) of the Constitution, 1992, more so when article 21(1)(e) of the Constitution, 1992 which is alleged to have been infringed covers associations national and international.

The next question is whether the plaintiff’s claims under articles 35(1), 37(2)(a) and (3) of the Constitution, 1992 are justiciable. These articles come under chapter 6 of the Constitution, 1992—The Directive Principles of State Policy. References have been made by counsel to the intentions of the framers of the Constitution, 1992. We can, however, go outside the words used [p.409] of [1997-98] 1 GLR 378 in the Constitution, 1992 to find the intention of the framers only where their intention cannot be found in the body of the Constitution, 1992 itself or, the wording is ambiguous or unclear. References to foreign provisions and cases to establish intentions in our own statutes or enactments are often unsafe as the circumstances giving rise to the formulation of some provisions in our laws may be alien to the foreign framers of their laws.

Article 34(1) of the Constitution, 1992 which is the opening article to the Directive Principles of State Policy gives a clear indication as to what the intention of the framers of that aspect of the Constitution is. It states:

“34. (1) The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society.” (The emphasis is mine.) Thus, if we are to achieve our objectives in a Constitution “We the People of Ghana …” have given to ourselves, then, there is the need to be guided and reminded always of these directives and, to that extent, article 34(2) of the Constitution, 1992 provides that: “(2) The President shall report to Parliament at least once a year all the steps taken to ensure the realization of the policy objectives contained in this Chapter; and, in particular, the realization of basic human rights, a healthy economy, the right to work, the right to good health care and the right to education.” In other words, when it becomes necessary to take a step to implement any section of the Constitution, 1992, either as to taking a decision, interpreting a provision, abandoning or curtailing a right, imposing a tax, enacting a law etc, etc, whoever is concerned or given the right to take that step should have regard to these directives.

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I do not think it is the intention of the framers of the Constitution, 1992 that these provisions under chapter 6 be enforced by court action. Specific provisions have been made in the body of the Constitution, 1992 for the obedience and enforcement of these rights. Any person who alleges a violation of any of these specific rights is entitled to enforce them by court action. The Directive Principles of State Policy are not justiciable by themselves. In the instant case, the right which the plaintiff seeks to protect by this action is contained in article 21 (1)(e) of the Constitution, 1992 which comes under chapter 5—The Fundamental Human Rights and Freedoms. Adjudication on that issue would have to be guided, by the Directive Principles of State Policy!

With the disposal of the issue on the question of the capacity of the plaintiff, the next task is to determine whether or not the Council of Indigenous Business Associations Law, 1993 (PNDCL 312) is inconsistent with or is in contravention of, the provisions of the Constitution, 1992, especially article 21(1)(e). Article 21(1)(e) of the Constitution, 1992 provides:

“21. (1) All persons shall have the right to— …

(e) freedom of association, which shall include freedom to form or join trade unions or other associations, national and international, for the protection of their interest.”

Section 4(1) of PNDCL 312 provides that: “The associations specified in the Schedule to this Law shall be registered with the Council.” (The emphasis is mine.) PNDCL 312 establishes a body to be known as the Council of Indigenous Business Associations. The council as provided by section 2(1) of PNDCL 312 consists of:

“(a) two representatives of each Association registered with the Council;

(b) a representative of the Ministry of Mobilization and Social Welfare; and

(c) the Executive Secretary and National Treasurer of the Council appointed under section 6 of the Law.” [p.411] of [1997-98] 1 GLR 378

It is not known how these associations which are required to be registered with the council were formed. The provision that these associations should be registered with the council is the gravamen of the plaintiff’s contention that such a requirement violates the associations’ right to form or join any association of their choice. It sees in this requirement a compulsion which is in conflict with the associations’ freedom enjoined in article 21(1)(e) of the Constitution, 1992. Consequently, it seeks a declaration and a consequential order for, at least, the said provision to be deleted from the statute books. Counsel for the defendant does not agree with this. He contends that since there is no evidence of compulsion for the associations to become members of the council,[sic](4) it cannot be said that there is a violation of their right either to join or not to join the council, and more so when there is no provision for their continued membership of the council; these associations are free to withdraw their membership of the council at any time.

An attempt by the defendant to adduce evidence of the voluntariness of these associations to join the council failed, as this court ruled that no such evidence was required. An assertion by the defendant in his statement of case that these associations had voluntarily decided to join the council was however never denied by the plaintiff. Be that as it may, if the only inference of compulsion comes from the demand or request that these associations (listed in the Schedule to PNDCL 312) should be registered, then I am inclined to disagree with the plaintiff. The requirement of registration in any Act or law is for the purpose of validity and identification of that particular association only. Such requirement abounds in our statute books: see section 3 of the Political Parties Law, 1992 (PNDCL 281); and the Professional Bodies Registration Decree, 1973 (NLCD 143). In the instant case, failure to register would not make the associations non-existent; they could still carry out their objectives in their own rights as associations; they would for failing to register with the council not be identified with the council or become members of the council and would not enjoy any benefits that would accrue to the council. They would remain as individual associations lawfully registered. The Industrial Relations Act, 1965 (Act 299) regulates the activities of trade unions and provides for a congress which shall act as the representatives of the various trade movements in Ghana. There is

[p.412] of [1997-98] 1 GLR 378 also the establishment of co-operative union or society to which other associations may join. To identify itself with the union or society, an association or body is required to register with the union or society.

Whether or not the rights of these associations which are required to register with the council have been infringed, is solely a matter affecting the individual interest of the said associations; they can enforce their rights by action under article 33 of the Constitution, 1992. The plaintiff is, as I already said, entitled to bring an action for a declaration as to whether or not an enactment is inconsistent with or is in contravention of the Constitution, 1992, but it cannot have the violation of the right of another person determined under article 2(1)(a) of the Constitution, 1992, especially when that person has not complained about his joining another association. In fact, an attempt to stop any person from joining an association individually or as a body would be a violation of that person’s right or freedom to join or not to join another association.

With regard to section 10(b) of PNDCL 312, I do not see how inconsistent it is with the provisions of the Constitution, 1992. Appropriation of public funds to the council or any other body is a matter within the powers of the government. Funding of private and public bodies including the universities is not a new occurrence under the laws of the country: see section 18 of the Coperative Societies Decree, 1968 (NLCD 252). In fact, the Directive Principles of State Policy encourage such funding, provided the procedure for so funding is adhered to. It is my considered opinion therefore that the provisions of PNDCL 312, referred to above, are not inconsistent with or in contravention of the Constitution, 1992. The laws of Ghana are as set out in article 1(1) of the Constitution, 1992. The Constitution, 1992 is the supreme law of Ghana. Consequently, laws, municipal or otherwise, which are found to be inconsistent with the Constitution cannot be binding on the State whatever their nature. International laws, including inter-African enactments, are not binding on Ghana until such laws have been adopted or ratified by the municipal laws: see article 75(1) of the Constitution, 1992. The government, as provided by article 73 of the Constitution, 1992, shall however, “

[p.413] of [1997-98] 1 GLR 378 conduct its international affairs in consonance with the accepted principles of public international law and diplomacy in a manner consistent with the national interest of Ghana.” This is a principle of public international law which recognises the sovereignty of states as a prerequisite for international relationship and law.

In conclusion, although I accept the plaintiff as having capacity to commence this action, I will dismiss the action since I do not find the provisions of PNDCL 312 inconsistent with or in contravention of any provisions of the Constitution, 1992.

JUDGMENT OF KPEGAH JSC.

The plaintiff, a political party registered under the laws of Ghana, invokes the original jurisdiction of this court seeking the following reliefs:

“(1) A declaration that the Council of Indigenous Business Associations Law, 1993 (PNDCL 312) is inconsistent with and a contravention of, the provisions of the Constitution, 1992, especially articles 21(1)(e), 35(1), 37(2)(a) and (3) of the Constitution, 1992 and that consequently to the extent of such inconsistency the said PNDCL 312 is void.

(2) Consequential orders in exercise of this honourable court’s jurisdiction under article 2(2) of the Constitution, 1992 prohibiting the Government of Ghana from interfering with the constitutional freedom of association guaranteed to the persons and organisations covered by the said PNDCL 312, including an order that all state funds made available to the council set up under PNDCL 312 should be refunded to government chest.”

The capacity of the plaintiff as endorsed on the writ is “a political party registered as such under the laws of Ghana under which it is a body corporate.”

In the accompanying statement of case filed on its behalf, the plaintiff’s case can be summarised as contending that the Constitution, 1992 guarantees to all persons freedom of association which includes the right of persons to form trade unions for the protection of their interests. But that the Council of Indigenous

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Business Associations Law, 1993 (PNDC Law 312) derogates from this right by seeking, in the words of the plaintiffs,

“to compel a number of voluntary associations and organizations listed in the Schedule to the said Law to register with a council set up by the Law and financed largely by the State with national, regional and district offices which are to be subject to the control of the said council.”

In the statement of case filed by the Attorney-General, the defence raised an important fundamental issue considering the personal or private nature of the right being asserted by the plaintiff. It was contended in paragraph (7) of the statement of case that PNDCL 312 was enacted upon the specific representation made by the free associations listed in the Schedule to the Law to enable them freely to operate under the umbrella of the council similar to the Trades Union Congress. The Attorney-General followed with a motion seeking leave of the court to call witnesses to prove that PNDCL 312 was enacted at the behest of the associations listed in the schedule. In an affidavit supporting the motion, Mrs Adusa-Amankwa, a Chief State Attorney, deposed in paragraphs (4) and (6) as follows:

“(4) That the nature of the defendant’s case as stated in paragraph (7) of the statement of the defendant’s case is such that it would be necessary to call witnesses to give evidence to help the court come to a decision in this matter …

(6) That the witnesses will give evidence to show that it was through their own instrumentality that the

Council of Indigenous Business Associations Law, 1993 (PNDCL 312) was passed.”

In spite of the nature of the defence, this court, differently constituted, unfortunately dismissed the application to call as witnesses those whose fundamental right of freedom of association is, alleged to have been breached by PNDCL 312 and which is being asserted in this action on their behalf by a third party. I used the word “unfortunately” because the right being asserted by the plaintiff is personal to those persons covered by the

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Law; and one would have thought that like all personal rights, the freedom of association being asserted on behalf of those affected by the Law can freely and voluntarily be compromised by the individuals concerned if they consider it to be in their interest to do so.

And now that the capacity of the plaintiff has been formally challenged it puts the issue back at center stage and assumes more relevance with some implications for the development of our constitutional law. I think the issue has to be considered with a higher legal vision in mind—the development of our jurisprudence—rather than a mere obeisance to the principle of stare decisis which encourages the judge to follow precedent rather than depart from it on the slightest pretext so as not to make the law uncertain and unpredictable. To refuse to follow one’s previous decision requires not only judicial fortitude but also judicial humility, since it does imply an admission that the previous decision was wrong. I am aware that this court has at a certain point in time admitted writs from legal persons or corporate bodies, including the present plaintiff, under article 2(1) of the Constitution, 1992. If we wrongly admitted those writs I do not see why we should not say so now. My views on the point whether legal persons or corporate bodies rather than natural persons are entitled to invoke our jurisdiction relying on article 2(1) of the Constitution, 1992, have been copiously expressed in the case of Ghana Bar Association v Attorney-General [1994-95] GBR 290, SC. The arguments advanced in this case have not persuaded me to change those views; neither have I succeeded in persuading my respected brothers to accept mine. So again, like in Ghana Bar Association v Attorney-General (supra), my dissenting voice becomes that lonely and frail voice crying in the wilderness. I hope it does continue to do so until one day it reaches some receptive and hospitable ear.

For the issues raised by the objections to the plaintiff’s capacity, in my view, not only go beyond the plaintiff’s legal competence to initiate an action in law, but also touches the plaintiff’s standing, or what is known in our legal lexicon as locus standi to maintain this particular action. In this sense “standing” means the sufficiency of the plaintiff’s interest in the subject matter of the [p.416] of [1997-98] 1 GLR 378 action he initiates. So that there is standing or locus standi in the plaintiff to sue if he demonstrates that he is sufficiently affected by the action he is challenging to justify consideration by the court of the validity of the action. The question therefore becomes whether the plaintiff, the New Patriotic Party, has the right under articles 2(1) and 130(1) of the Constitution, 1992 to assert the constitutional jus tertii, or has the standing to enforce the constitutional rights of third parties who are not in court, and without their consent. It is very important for us to be clear in our minds about the fact that a person may have the legal competence to initiate actions in court but may not have the standing to bring a particular action. There is an absolute need to maintain this important distinction. So that when a plaintiff’s capacity is challenged in an action there is need to determine the implications of the challenge, or its ramifications. As to whether the words “a person” as used in article 2(1) of the Constitution, 1992 includes legal entities or corporate bodies as well as natural persons, my views have been sufficiently stated in the case of Ghana Bar Association v Attorney-General (supra) so I do not want that aspect to unduly burden this opinion. But before I go on any further, I would like to examine our Supreme Court Rules, 1970 (CI 13) which require that a party who wants to invoke our original jurisdiction must endorse or disclose on the writ the capacity in which he brings the action.

Rule 45(2)(a) of CI 13) provides:

“(2) The writ shall set out as concisely as possible the nature of the relief sought by the plaintiff and shall state,—

(a) the full name of the plaintiff and the capacity in which he is bringing the action.” The above provision has been re-enacted in rule 45(2)(a) of the new Supreme Court Rules, 1996 (CI 16). Is this requirement intended to inform this court of only a plaintiff’s legal competence to invoke our original jurisdiction, or is intended to also inform the court of something else? If the answer is in the affirmative, which is my view, then that “something” is the second element involved when one’s capacity to bring an action is challenged in court; namely, the locus standi or standing of a party to bring

[p.417] of [1997-98] 1 GLR 378 that particular action. To my mind, the requirement that a party endorses on the writ the capacity in which he brings an action is not only intended to show that he has the legal competence to bring an action in the courts or the legal capacity to sue only, but also to indicate that he has standing in the action; that is to say, he has sufficient interest in the subject matter of the dispute, or has the authority of the one who has, to enable him approach the court.

In deciding the issue of the challenge to the plaintiff’s capacity in this case, I cannot limit my consideration only to the issue whether legal persons are also competent to approach us under article 2(1) of the Constitution, 1992, but also I will consider whether the plaintiff has the standing to assert the constitutional rights of a third party. I have not been encouraged to change my views in Ghana Bar Association v Attorney-General (supra) simply by a reference to article 3(4)(a) of the Constitution, 1992 in aid of our interpretation of the words “a person” to include corporate bodies also. Article 3(4)(a) of the Constitution, 1992 says:

“(4) All citizens of Ghana shall have the right and duty at all times—

(a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article.”

The acts referred to in clause 3 of article 3 of the Constitution, 1992 are the violent or unlawful overthrow, suspension or abrogation of the Constitution, 1992 or any part thereof. The Constitution, 1992 does not define the word “citizen” and does not ascribe to it any special meaning in article 3(4)(a) either, so we must first consider the natural and ordinary meaning of the word “citizen”. The natural and ordinary meaning of “citizen” is a native or naturalised member of the state. No sophistry can make me accept that the word “citizen” as used in article 3(4) includes a legal person or a corporate body and thereby demands of a disemboweled entity like Kaleawo Enterprises Ltd or Afko Fisheries Ltd, a duty to resist an attempt by a group of persons to violently or unlawfully overthrow the Constitution, 1992. By [p.418] of [1997-98] 1 GLR 378 what realistic means can a body corporate or a legal entity resist such an endeavour? I would have thought that it is only human beings who can realistically and meaningfully resist the attempts of military adventurers and their civilian collaborators through civil disobedience and non-cooperation with the coup makers.

If the whole of article 2 of the Constitution, 1992 is read together or the whole of chapter 1 of the Constitution—that is articles 2 and 3—are read together, nowhere can the word “person” be interpreted to include a legal or corporate person or body. It is important that the article must be read as a whole since this is what the rules of interpretation require.

Any resort to the preamble as an aid to the interpretation of “a person” as used in article 2(1) can only complicate matters with its disastrous constitutional implications; namely, redrafting of the Constitution, 1992 instead of interpreting same. I must confess my inability to comprehend how the phrase, “We the People of Ghana” as used in the preamble can be said to include legal entities. That phrase means just what it says: We the individual citizens of Ghana

“in exercise of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity equality of opportunity and prosperity do hereby adopt, enact and give to ourselves this Constitution.”

And if we should obey the canons of interpretation that a preamble can control, and often does control an Act, there should be no difficulty in identifying the persons who have the right to the use of the enforcement provision in article 2(1) of the Constitution, 1992. They must be those who, in the words of the preamble, “adopt, enact and give to ourselves this Constitution.”

It has to be appreciated that the word “person” as used in the Constitution, 1992 is an ambiguous word which must be controlled by the context in which it finds itself: see the case of the Ghana Bar Association v Attorney-General (supra). So that if it is accepted that the word “person” in a legal document can mean both a natural and legal person, then it is the context which must determine the sense in which it is used. One cannot therefore find solace in a submission that because the Interpretation Act, 1960 [p.419] of [1997-98] 1 GLR 378

(CA 4) in section 32 defines “person” to include legal entities, so the word “person” as used in article 2(1) of the Constitution does include a body corporate. This does not make sense to me because section 32 of CA 4 is made subject to section 1 which provides that section 32 will apply unless the context otherwise decides. The argument is not about whether “person” can in law include artificial or corporate bodies or not. But whether in article 2(1) of the Constitution, 1992 the context does permit both meanings to be imported into the word. Therefore to argue that it is because CA 4 in section 32 says the word “person” includes a corporate body it must, as used in article 2(1) of the Constitution include corporate bodies, is begging the question, in my view. And the absurdity will be apparent if CA 4 is applied in interpreting the word “person” whenever it occurs in the whole of article 2(3) and (5) or the whole of chapter 3 of the Constitution, 1992—that is inclusive of article 3(2), (4), (5), (6) and (7). This aspect has been exhaustively dealt with in my earlier opinion in Ghana Bar Association v Attorney-General (supra). The consideration which might have influenced some of my colleagues in rejecting outright the objection of the learned Attorney-General, is the view that such an interpretation will deny corporate bodies the right to enforce their property rights through the enforcement jurisdiction of this court in article 2(1) of the Constitution, 1992. There is no gainsaying the fact that the Constitution, 1992 guarantees both the individual and a corporate body the right to property. This right, like any fundamental human right, however is enforceable by the High Court under article 33 of the Constitution, 1992. The enforcement jurisdiction of this court is “subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms provided in article 33 of this Constitution”: see the judgement of this court in Adusei v Inspector-General of Police [1996-97] SCGLR where the plaintiff’s action was dismissed by this court on the grounds that he was seeking the enforcement of his rights and therefore the proper forum was the High Court. And in the case of Gbedemah v Awoonor-Williams, G & G 438 the Court of Appeal sitting as the Supreme Court under section 8 of the transitional provisions of the Constitution, 1969 specifically held that the enforcement jurisdiction of the Supreme Court under [p.420] of [1997-98] 1 GLR 378 article 106(1)(a) of the Constitution, 1969 which is in pari materia with article 130(1)(a) of the Constitution, 1992 did not include the enforcement of fundamental human rights. After reviewing the Gbedemah case (supra) in Abel Adusei v Attorney-General (supra) I said thus at 55:

“It is in respect of the provisions contained in chapter 5 of the Constitution, that is articles 12-30, that the enforcement jurisdiction of the Supreme Court has been made subject to that of the High Court, thereby granting to the High Court exclusive jurisdiction in the enforcement of individual rights as a court of first instance. “The Supreme Court has only appellate jurisdiction in such matters . . . Where, therefore, an issue as to the enforcement of a provision of the Constitution arises, our original jurisdiction can be invoked only if the said provision is not one in relation to individual rights—that is articles 12-30 of the Constitution which covers the individual’s rights.”

The right of a corporation to property and the privacy of its premises are guaranteed in article 18 of the Constitution, 1992. And this right, like that of the individual, is enforceable in the High Court. So that the legal person or corporate body does not need to invoke article 2(1) of the Constitution, 1992 to protect its property rights, for that consideration to influence us to interpret the word “person” to include a legal entity or body corporate. It has to be appreciated that our enforcement jurisdiction does not extend to or include fundamental human rights as enshrined in articles 12 to 32 in chapter 5 of the Constitution, 1992. Otherwise, it will make redundant or nonsense of the phrase “subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms” which precedes the delineation of our exclusive original jurisdiction in article 130(1) of the Constitution, 1992.

It is true that in matters of infringment[sic](5) of fundamental rights it is mainly the application of a law to a person which will provoke such a claim. However, neither the fact that it can be urged that it is in the public interest to have promptly decided whether a law is unconstitutional or not can justify our assumption of jurisdiction in

[p.421] of [1997-98] 1 GLR 378 the enforcement of the fundamental human rights, nor can an argument that the constitutional rights of a person is in jeopardy justify such an assumption of jurisdiction by us in violation of a constitutional prohibition. This is not part of our original jurisdiction.

I have already indicated my grave doubts about the sound-ness[sic](6) of using article 3(4)(a) of the Constitution, 1992 which imposes a duty on every citizen of Ghana to defend and uphold the Constitution, 1992 as an aid to the interpretation of article 2(1) to include artificial persons or corporate bodies in the meaning of the word “person” as used in the said article. That reasoning is adopted from the case of Tuffour v Attorney-General [1980] GLR 637, CA sitting as SC which I will be discussing in this opinion. As pointed elsewhere in this opinion, “citizen” must be given its ordinary meaning so as not to make nonsense of other provisions of the Constitution, 1992, especially the chapter on citizenship; that is to say articles 6 to 10 of the Constitution, 1992. This to me is not a doctrinaire approach to interpretation. I will now discuss the second aspect of the legal problem raised by the defendant’s objection to the capacity of the plaintiff. Even if the view is taken that the plaintiff, no doubt a legal person under the law, has the legal competence to take an action under article 2(1) of the Constitution, 1992, an equally fundamental question remains to be answered: To what extent, if at all, can a person assert the constitutional rights of another which the plaintiff seems to be doing in this action? It is no solution to the problem by merely citing the case of Tuffour v Attorney-General (supra) which is regarded as the locus classicus on the point. This opinion will try to discuss and distinguish the case of Tuffour v Attorney-General (supra).

There is a fundamental principle which underlines the concept of litigation in our jurisprudence—that is, litigation implies the assertion of adverse rights by the parties involved. This normally involves the presence of the parties in court either by themselves or through their authorised representatives. The requirement to disclose one’s capacity in the writ of summons is often intended to show, in a nutshell, not only one’s legal competence to sue but also one’s link with, or interest in, the case. In our jurisprudence, therefore, a challenge to a plaintiff’s capacity to bring an action

[p.422] of [1997-98] 1 GLR 378 does not only require that the plaintiff proves that he has the legal competence to initiate an action but also that he has sufficient interest in the subject matter, or has the authority of the person whose rights he asserts, to justify his presence in court. The American jurisprudence refers to this as a requirement of “standing” while we christen it “locus standi”. The plaintiff must have the locus standi to bring the action. Therefore to say a person has no locus standi means that he has no right to appear in a particular proceeding. That is, either he has no interest in the proceeding or has no legal competence to initiate the action.

Admittedly, the United States Supreme Court has no original jurisdiction like the one bestowed on the Supreme Court under our Constitution, 1992. In the United States all important civil liberty cases travel through the federal courts to the Supreme Court. The jurisdiction of the United States Supreme Court is essentially that of a review jurisdiction; even in matters involving the constitutionality of Acts of Congress. Under our Constitution, however, while it is the High Court which, under article 33 of the Constitution, 1992, has exclusive jurisdiction to enforce fundamental human rights, with the right of appeal to the Court of Appeal and then to the Supreme Court, the latter has the exclusive jurisdiction to declare an Act of Parliament unconstitutional. This can be achieved either by invoking its exclusive original jurisdiction, or by reference to it by a court in which such an issue arises: see article 130(2) of the Constitution, 1992.

Although the procedure for challenging the constitutionality of an Act in both jurisdictions may be radically different, the fundamental concept of litigation as a process of settlement between parties with adverse claims to each other permeates both systems. This is because both systems have their origin in the common law. The United States Supreme Court, however, has evolved a body of rules to meet the problem of when it should exercise the power of judicial review and declare an Act of Congress as unconstitutional. These rules to permit or deny judicial review, can be said to have been derived from two sources.

The first group of rules emanate from those constitutional limitations imposed on its power of judicial review as embodied in the “case and controversy” provision of article III of the United States Constitution. The United States Supreme Court has con [p.423] of [1997-98] 1 GLR 378 istently interpreted this limitation on its powers of judicial review to require that “at least in the absence of statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury . . . before a federal court may assume jurisdiction.” And the court also held that the fact that it can be urged that it would be convenient for the public to have promptly decided whether the legislation challenged is valid or not, cannot justify a departure from the rule of “case and controversy.” However, it must be said that there is no such comparative provision in our Constitution, 1992. But this court in the case of Bilson v Attorney-General [1993-94] 1 GLR 104, SC impliedly applied the case and controversy rule by refusing to assume jurisdiction where the plaintiff came to court to seek only the interpretation of certain provisions of the Constitution, 1992 when there was no dispute about their meaning. And the court, asserting that any decision on the merits would amount to giving an advisory opinion in a hypothetical situation, dismissed the action.

The second set of rules can be traced to the unfamiliar source of self-restraint. They are those self-imposed and discretionary limits which the United States Supreme Court itself has evolved in recognition of the fact that the values implicit in the concept of separation of powers which underpins the United States Constitution are often better fostered by a refusal to exercise the “awesome power of review” and declare an Act of Congress unconstitutional. Needless to say, the concept of separation of powers underpins our Constitution, 1992 also. So that the United States Supreme Court has often reminded itself that ordinarily, one may not claim standing to vindicate the constitutional rights of some third party. And in the case of Blair v United States, 250 US 273 at 279 (1919) the court reiterated this principle in these words:

“Considerations of proprietary, as well as long-established practice, demand that we refrain from passing upon the constitutionality of an act of Congress unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.”

[p.424] of [1997-98] 1 GLR 378

(The emphasis mine.) The defendant by his pleadings, can be said to have insisted throughout this litigation that the plaintiff has no standing to challenge the constitutionality of PNDCL 312. This, to me, means that the plaintiff has neither legal competence nor standing sufficient to maintain the present action against the defendants. This objection is not overcome by presenting an argument that a corporate body can maintain an action under article 2(1) of the Constitution, 1992. There is no assertion that the property rights of the plaintiff are imperiled by PNDCL 312, and the pleadings are barren of any evidence on which such a finding of fact can be made. Even if the plaintiff’s property rights are involved, its enforcement, as we have seen, does not form part of the enforcement jurisdiction of this court under articles 2(1) and 130(1) of the Constitution, 1992. And I do not think the problem is overcome either by simply referring this court to the decision in Tuffour v Attorney-General (supra) which was decided under a similar provision of the Constitution, 1979 of Ghana, but the facts of which are distinguishable from the present case.

I hold the firm view that the language of articles 2(1) and 130(1) in our current Constitution, 1992 allows us to enunciate a general principle that a plaintiff who invokes our original jurisdiction or seeks our enforcement and interpretative jurisdiction must, except perhaps in public interest cases, allege some threatened or actual injury before we may assume jurisdiction. This will not in any way derogate from our constitutional responsibility as guardians of the Constitution and the protectors of the liberty of our people. And to the proposed general principle, can be scrupulously and carefully created exceptions which will allow for a healthy development of our constitutional law. I will in this respect recommend the approach of the United States Supreme Court.

The United States Supreme Court has not been spared the confusion which tends to afflict any court in applying general principles and at the same time creating exceptions to the said principles. To avoid this confusion ourselves, we must draw a distinction between two types of situations or claims which could be brought to assert the rights of others. The first is overbreadth challenges of a law; and the second is a claim simply to assert the right of third parties not before the court, as in the instant case. [p.425] of [1997-98] 1 GLR 378

An overbreadth challenge is based on the contention that the statute or law is too wide as to include under its sanctions certain protected freedoms. In such a situation, an overbreadth claimant seeks to indirectly assert the rights of hypothetical third parties to whom the challenged legislation could conceivably apply in the future in a manner that would violate their constitutional rights or other interest. This was the assertion in the case of Republic v Tommy Thompson Books Ltd [1997-98] 1 GLR 515, SC (post) where section 185 of the Criminal Code, 1960 (Act 29) was challenged as unconstitutional because it was too wide in scope and could criminalise even innocent conversations between spouses in their bedrooms. In the American case of Roe v Wade, 410 US 113 (1973) for example, a physician who was being prosecuted under a state anti-abortion law sought to assert that the enforcement of the law violated the constitutional rights of his patients. Thus, overbreadth challenges involve both the application of the assailed statute to the party before the court and a different, hypothetical application of the said law to third parties not before the court. A distinction has therefore to be made between a relief which is a claim of a statutory overbreadth and a claim which is purely jus tertii, like the instant action. What then should be the attitude of this court in such cases?

It has already been pointed out that the United States Supreme Court has always treated the question of whether to permit the assertion by a person of another’s constitutional right as being regulated not by constitutional requirements or limitations, but by self-imposed discretionary rules. This means that although the court has exercised its discretion by articulating its views in a general presumption against the assertion of such claims on behalf of a person not before it, the court does allow certain exceptions. In those cases where the court allows the assertion of the constitutional rights of others by another, it has noted a number of factors, none of controlling significance, which it feels justifies a departure from its articulated rule. The first of these is the presence of some substantial relationship which exists between the claimant and the third parties; the second is the impossibility of the right holders asserting their own constitutional rights, and the

[p.426] of [1997-98] 1 GLR 378 third factor is the need to prevent the dilution of the constitutional rights of those third parties if the claim were not permitted.

All these factors were present in the case of Barrows v Jackson, 346 US 249 (1953), where a white landowner who sold property to blacks was permitted to assert, by way of defence in a damage action for breach of a racially restrictive covenant, that the enforcement of the covenant could deny blacks equal protection. After stating the general rule and reinstating its disinclination to entertain actions based on the rights of third parties, the court pointed to “the need to protect fundamental rights which would be denied by permitting the damage action to be maintained” and argued that the landowner was the only party who could effectively vindicate those rights. In the case of Griswold v Connecticut, 381 US 479 (1965), a doctor and a birth control official who distributed contraceptives were prosecuted under an aiding and abetting statute as accessories to the crime of using birth control devices. The court permitted the defendants to assert the privacy rights of the recipients because of the accessorial and professional relationship between the defendants and the third parties, and because the recipients’ rights would be diluted were the assertion of jus tertii denied by the court. The last case which may be considered is the case of NAACP v Alabama, 357 US 449 (1958). In that case, the state of Alabama had obtained an order of a court which required the association to produce its membership list. The association refused to comply and was cited and held in contempt. The United States Supreme Court reversed that decision, permitting the NAACP to assert the rights of its members, holding that the court order violated their first amendments right of freedom of association. The court noted that litigation by individual members would require disclosure of their identity and thus destroy the freedom of association threatened by the court order. The court held that the NAACP was therefore the appropriate party to assert that right.

It does therefore appear, does it not, that emphasis was placed on the inability of the third parties (ie the members) to vindicate their own rights without compromising same, and on the close relationship between the asserter and the right holders. It would therefore seem that the exceptions to the general rule against the

[p.427] of [1997-98] 1 GLR 378 assertion of the rights of parties not before the court, could be justified by the particular circumstances of each case.

In an article entitled “Standing to Assert Constitutional Jus Tertii” in the Harvard Law Review (1974), Vol 88, p 423 at 429, the learned author stated thus:

“Where a litigant alleges no injury to himself, the court’s disinclination to allow him to vindicate the Constitutional rights of third parties provides a sensible and justifiable limitation on the assertion of JUS TERII claims. Because the judiciary’s primary role in judicial review is to adjudicate the rights of private parties before it; the mere fact that the constitutional rights of third parties may be in jeopardy provides no justification for judicial intervention. In accordance with this limitation, the court appears never to have heard a case in which a litigant’s only assertion of harm was that the challenged action deprived third parties of their constitutional rights.”

The important factors in identifying cases in which the assertion of jus tertii are allowed as necessary to preserve those rights is the link between the claimant’s injury and the constitutional rights of the third parties coupled with the inability of the third parties to assert the rights themselves leading to a devaluation of those rights. No such linkage has been alleged or established in this case. And for such a link to be relevant it must not be too remote or enflung. It is not the case of the plaintiff that the affected associations are satellite associations of the New Patriotic Party (NPP).

It may be appropriate here to remind ourselves of our duty as stated by Cooley in his book Constitutional Limitations (8th ed), p 332:

“It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility.” [p.428] of [1997-98] 1 GLR 378

The US Supreme Court has therefore not infrequently called attention to the “great gravity and delicacy” of its function in pronouncing upon the validity of an Act of Congress. The court has therefore restricted the exercise of this function by rigidly insisting that its jurisdiction of judicial review shall be limited to actual cases and controversies and that the court has no jurisdiction to give advisory opinion. This limitation, as has earlier been pointed out, has its root in the case and controversy provision of article III of the United States Constitution. However, the court has developed, for its own guidance in cases which are admittedly within its jurisdiction, a set of rules under which it has avoided pronouncing upon a large part of the constitutional questions pressed upon it for its decision. One such rule was applied in the case of Chicago & Grand Trunk Ry v Wellman, 143 US 339 (1892) where it was held that the court would not pronounce on the constitutionality of a legislation in a friendly, non-adversary proceedings, because to decide such a question “is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals.” The court gave as its reason the fact that “it never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.”

The second rule is that the Supreme Court will not anticipate a question of constitutional law in advance of the necessity of deciding it: see the case of Liverpool, NY & PSS Co v Emigration Commissioners, 113 US 33 at 39. And in the case of Burton v United States, 196 US 283 at 295 (1905) the court cautioned that it is not “the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” In the same case, the court intimated it will not “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Another important rule of self-restraint developed by the United States Supreme Court is that the court will not pronounce on a constitutional question, although properly presented by the record, if there is also present some other ground on which the case may be disposed of. So that if a case can be decided on either of two grounds, one involving a construction or general law, the [p.429] of [1997-98] 1 GLR 378 court would decide only the latter: see cases like Siler v Louisville & Nashville R Co, 213 US 175 (1909) and Light v United States, 220 US 523 (1911).

One other rule of self-restraint which is worth mentioning is that the court will not pronounce on the validity of a statute upon the complaint of one who fails to show that he is injured by its operation: see cases like Tyler v The Judges, 179 US 405 (1900); and Hendrick v Maryland, 235 US 610 (1915). The significance of this rule is the denial of the right of challenge to one who lacks a personal or property rights. Therefore a challenge by a public official interested in the performance of his official duty was not entertained in the case of Columbus & Greenville Ry Co v Miller, 283 US 96 (9999). And in the case of Fairchild v Hughes, 258 US 126 (1922) the court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. The next sensible rule of selfrestraint which merits mention in this opinion is the rule that the court will not pronounce on the constitutionality of a statute at the instance of somebody who has availed himself of its benefits. The last, but certainly not the least, I would like to draw attention to, is that stated in the case of Crowell v Benson, 285 US 22 at 62 (1932) where the court pointed out thus:

“When the validity of an act of Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” The principle could be said to have informed my opinion in the Republic v Tommy Thompson Books Ltd (supra) at 576-577 (post) when I said;

“ … I do not think that section 185 of the Act 29 prevents a candid and free discussion of any public matter which is the right of every citizen. It only means that any person may criticise, either by word or by writing, the servants of the State, or the government, freely and liberally without malicious motives and the person must avoid defamation.”

[p.430] of [1997-98] 1 GLR 378

I have tried to bring out some of the self-regulatory rules developed by the United States Supreme Court because of what I consider as too much eagerness on the part of this court to pronounce on the merits once some doubt is raised about the constitutionality of a statute. Parliament may not be sovereign under our Constitution, 1992 since its Acts are subject to the scrutiny of the Supreme Court. But neither has the Constitution, 1992 enthroned the judiciary. Our decisions must be seen to recognise the doctrine of separation of powers which underpins our Constitution, 1992.

In arguing the issue of capacity, the plaintiff relied heavily on the case of Tuffour v Attorney-General (supra). This case is considered as a landmark decision in our constitutional law. The case has assumed such a stature and is accorded so much reverence in legal circles that there is virtually the temptation to cite it in every constitutional case. This is often done without regard to the fact that it was a case which was decided under a particular Constitution—the Constitution, 1979. And often without regard to the facts of the case itself. However, any attempt at criticising a case with such a long history of reverence behind it can only be done with a lot of diffidence.sic(7) The facts are well-known but I will state them briefly and the legal issues which came up for discussion. The plaintiff issued a writ against the Speaker of Parliament and the Attorney-General before the Court of Appeal sitting as the Supreme Court for a declaration that: (i) on the coming into force of the Constitution, 1979 the incumbent Chief Justice, the Hon Mr Justice Fred Kwasi Apaloo, was deemed to have been appointed the Chief Justice and as such was the president and member of the Supreme Court; (ii) that his purported nomination, vetting and subsequent rejection by Parliament were in contravention of the Constitution; (iii) that the Hon Justice Apaloo remained the Chief Justice of Ghana and as such the president and member of the Supreme Court. At the trial the learned Attorney-General raised three preliminary objections for determination. The points raised touched on the jurisdiction of the court, the capacity of the plaintiff and the competence of the Speaker as a defendant in the case.

In respect of the capacity of the plaintiff, the Attorney-General contended that a person seeking a relief had to have a cause of

[p.431] of [1997-98] 1 GLR 378 action for which a relief could be granted him; that the plaintiff was not claiming any relief for himself and had no interest in the case; that the person who had an exclusive interest was the incumbent Chief Justice with whom the plaintiff had no community of interest.

To these points, the leading counsel for the plaintiff countered that the plaintiff’s writ was an action seeking an interpretation and enforcement of certain provisions of the Constitution, 1979; that the issue was whether the incumbent Chief Justice was only a “transitional” Chief Justice or the substantive one. He further contended that the tenure of his office and the terms of that tenure were of interest to every Ghanaian since by the provisions of the Constitution, 1979 he is the head of the judiciary, an institution which had enormous responsibilities in the maintenance of constitutionalism in Ghana. The constitutionality or otherwise of the tenure of the holder of the office of Chief Justice was a matter of grave public importance which affected every citizen of Ghana directly—the administration of justice and the protection of constitutionalism.

This argument, in my view, simply put is that the action was in the realm of “public interest” actions, or actio popularis so that any citizen can bring an action in the courts. I do not find any difficulty with this argument: see my views in Ghana Bar Association v Attorney-General (supra). I will for the moment assume that the case was really a public interest action and not one personal to the incumbent Chief Justice himself.

The court in dismissing the objection to the plaintiff’s capacity, premised or anchored its decision on the fact that article 1(3) of the Constitution, 1979 enjoined all citizens of Ghana to resist any person or persons seeking to abolish the constitutional order, as established by the Constitution, 1979 if no other means was available. This was how the court reasoned at 649-650 per Sowah JSC (as he then was):

“The Constitution confers on every citizen of Ghana by article 1(3): ‘the right to resist any person or persons seeking to abolish the constitutional order as established by this Constitution should no other remedy be possible.’ This means that every citizen of Ghana has the right, con [p.432] of [1997-98] 1 GLR 378 titutional or otherwise, to see to it that the constitutional order as established by the Constitution is not abolished or sought to be abolished. One method by which it could be determined whether a person is seeking to abolish the constitutional order, is to seek for an interpretation of the Constitution as to the meaning or the effect of a particular provision or provisions of the Constitution. In such a case, in essence, there would neither be a defendant nor a plaintiff—properly so called, as the terms are commonly employed in ordinary proceedings in this courts.”

After asking certain rhetorical questions, the court pronounced itself thus at 650:

“There is a right, a duty cast upon every citizen of Ghana to go to Supreme Court for determination whether a person or persons is, or are, seeking to abolish the constitutional order established by the Constitution.”

I find it very difficult to accept the reasoning of the court as reflected in the two dicta quoted above. The first penetrating question is: Could it be said that by re-nominating the incumbent Chief Justice the President was “seeking to abolish the constitutional order as established” by the Constitution, 1979 so as to enable the court apply article 1(3)? Or could the President be said to be abolishing the position of Chief Justice? I conceive that to “abolish” a constitutional order is to dissolve, or put an end to, or to destroy the established order in the sense that it would cease to have legal existence and be incapable of functioning. Article 1(3) of the Constitution, 1979 contemplated a violent or an unlawful overthrow of the constitutional order. At least the re-nomination of the incumbent by the President could only have been said to be an “act” which was “inconsistent with, or in contravention of”, a provision of the Constitution; a situation covered by article 2(1)(b) of the Constitution, 1979. With the greatest respect, therefore, to premise the decision of the court on article 1(3) of the Constitution, 1979 with the reason that because a citizen of Ghana has the right and duty to defend the Constitution by resisting those who may seek “to abolish the constitutional order” the plaintiff

[p.433] of [1997-98] 1 GLR 378 had capacity, is possibly giving the wrong reason for a correct decision.

To possibly give some strength to my argument, I would like to state that article 1(3) of the Constitution, 1979 is re-enacted in article 3(4) of the present Constitution, 1992 thus:

“(4) All citizens of Ghana shall have the right and duty at all times—

(a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and

(b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article.”

And what is prohibited in clause 3 of article 3 of the Constitution, 1992 is the violent or unlawful overthrow, or suspension, or abrogation of the Constitution, 1992 or any part thereof. My next observation about the Tuffour case (supra) is the equally surprising reliance the court placed on article 1(2) of the Constitution, 1979 to resolve the issue of the plaintiff’s capacity. Article 1(2) of the

Constiltution[sic](8), 1992 stated:

“(2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void and of no effect.” Immediately after quoting the above provision, the court said at 655 per Sowah JSC (as he then was) thus: “This is the constitutional criterion by which all acts can be tested and their validity or otherwise established. A plaintiff under article 1(2) of the Constitution need not have any community of interest with any person or authority. His community of interest is with the Constitution.”

(The emphasis is mine.)

With much respect, the court again fell into an error by relying on a provision which was not relevant to the issue before it. Article 1(2) of the Constitution, 1992 proclaims the supremacy of the Constitution as “the supreme law of Ghana” so that “any other law” found to be inconsistent with any provision of the Constitution shall be deemed to be void and of no effect to the extent of the inconsistency. Therefore, when the court said article 1(2) of the Constitution, 1992 was “the constitutional criterion by which all acts” were to be tested and their validity or otherwise established, was it referring to “acts” as something done; an actus? Or Acts of Parliament; or it was using “acts” to mean “laws”? If the court was using the word “acts” in the former sense, that is, an actus or something done, then I submit the court erred by rather putting reliance on article 1(2) which specifically refers to “any other law.” For by re-nominating the incumbent Chief Justice, the President was not passing any law to enable article 1(2) of the Constiltution[sic](9), 1979 to be invoked in finding a solution to the objection to the plaintiff’s capacity. As pointed out earlier, by re-nominating the incumbent, the President could have been said to have done something which was inconsistent with a provision of the Constitution, 1979 and article 2(1)(b) rather could have been invoked. The second complaint of the plaintiff puts this beyond dispute when he referred to the nomination by the President and subsequent vetting and rejection by Parliament as “acts effected in contravention of the Constitution.”

The Court of Appeal could have disposed of the issue as to the capacity of the plaintiff by importing into article 2(1) of the Constitution, 1979 the concept of public interest litigation since the court held the view that whether or not the Hon Justice Apaloo, the incumbent Chief Justice, was the substantive Chief Justice or not, was not a private right but a matter of public interest; that is assuming that the court was right in so concluding. I am not prepared here to dispute the assessment of the Court of Appeal that the issue was one of public interest rather than a private right. However, I would submit that in public interest litigations, the public’s interest must be real and substantial and not fanciful or trifling. The Court of Appeal might have been faced with the dilemma of non-suiting an obviously [p.435] of [1997-98] 1 GLR 378 honest plaintiff whose third party claim, as a matter of substantive constitutional law, appeared most likely to prevail. The court, in view of its own finding, could have imported the concept of public interest litigation to give the plaintiff capacity to bring the action. In the alternative, it could have employed the principle in Barrows v Jackson (supra) and Criswold v Connecticut (supra) line of cases to the effect that the right holder himself was not in a morally and legally decent position to institute an action to vindicate his rights in a court of which he was a member and the titular head. It would have been awkward for the Chief Justice himself to issue a writ and select a panel to adjudicate on the case. The principle of nemo debet esse judex in propria causa or nemo potest esse simul actor et judex—a man cannot sue before himself or his deputy, would have been seriously compromised.

My view of the Tuffour case (supra) is that the court was propably overwhelmed by the merit of the case and gave the wrong reasons for a correct decision. The case cannot therefore be relied upon where a plaintiff is seeking to simply enforce the personal rights of a third person. I had been tempted to consider the often quoted guideline enunciated in the case ostensibly for the interpretation of our Constitution, but I will leave this aspect for a more propitious occasion.

I will proceed to non-suit the plaintiff on the following grounds:

(a) the action being one intended to enforce the fundamental rights per our original jurisdiction, this court has no jurisdiction as a court of first instance in such matters; and

(b) the plaintiff has no legal competence to bring this action; and even if it has the legal competence to initiate an action under article 2(1) and 130(1) of the Constitution, 1992 it has no standing to initiate this particular action.

We must be cautious as to when to permit a person to enforce the constitutional rights of another since such a conduct could, in certain situations, amount to an infringement of that person’s fundamental right. I will therefore uphold the preliminary objections raised by the learned Attorney-General and dismiss the plaintiff’s writ; and it is hereby dismissed.

[p.436] of [1997-98] 1 GLR 378

JUDGMENT OF ATUGUBA JSC.

In this case the plaintiff claims per its writ:

“(1) A declaration that the Council of Indigenous Business Associations Law, 1993 (PNDCL 312) is inconsistent with and a contravention of, the provisions of the Constitution, especially articles 21(1)(e), 35(1), 37(2)(a) and (3) of the Constitution, 1992 and that consequently to the extent of such inconsistency, the said PNDCL 312 is void.

(2) Consequential orders in exercise of this honourable court’s jurisdiction under article 2(2) of the Constitution, 1992 prohibiting the Government of Ghana or any agency of the Government of Ghana from interfering with the constitutional freedom of association guaranteed to the persons and organisations covered by the said PNDCL 312, including an order that all state funds made available to the council set up under PNDCL 312 should be refunded to government chest.”

The accompanying statement of claim shows that the action is brought pursuant to articles 1(2) and 2(1)(a) of the Constitution, 1992 to invoke the original jurisdiction of this court.

The defendant has attacked the locus standi of the plaintiff on the ground “that only natural persons have the right to bring an action under article 2(1) of the Constitution, 1992. Therefore the plaintiff being a fictitious personality, has no locus standi in this case.” This submission is not without some judicial support. In the case of Ghana Bar Association v Attorney-General [1994-95] GBR 290, SC my brother Kpegah JSC in a vigorous dissenting judgment took that stand. In Bilson v Apaloo [1981] GLR 24 at 92, SC Taylor JSC in a vigorous dissenting judgment held that having regard to the penalties for disobedience of an order of this court pursuant to article 2(4) and (5) of the Constitution, 1979 relating to imprisonment and disqualification from standing for elections or appointment to public office for a period of ten years, the Court of Appeal, which had been joined as a defendant to that suit, was not a proper party. He continued that such considerations led Mr Justice Black of the United States Supreme Court in Connecticut General Life Insurance Co v Johnson, 303 US 77

[p.437] of [1997-98] 1 GLR 378

(1938) and later Mr Justice Douglas in Wheeling Steel Corp v Glander, 337 US 562 (1949) to hold in dissenting judgments that as a matter of language the Fourteenth Amendment of the United States Constitution is applicable to human beings and does not contemplate corporations.

It is true that in the case of Ghana Bar Association v Attorney-General (supra) the point raised and argued was whether the Ghana Bar Association is a “person” within the meaning of article 2(1) of the Constitution, 1992 and therefore the point now being taken by the Attorney-General in this case was not really decided. However, my sister Bamford-Addo JSC did hold in that case that both corporate and natural persons can sue under article 2(1) of the Constitution, 1992 for the reliefs under articles 1(2) and 2(1)(a) of the Constitution, 1992 for declarations as to constitutionality but that without a real dispute arising one cannot so sue under article 2(1)(b) of the Constitution, 1992.

It is true that the preamble to the Constitution, 1992 as well as article 1(1) of the Constitution, 1992 relate to human beings and that the penalties prescribed under article 2(4) and (5) of the Constitution, 1992 cannot be suffered by artificial persons. But it is equally true to say that corporate personality is a legal contraption of the sovereign people of Ghana, through the common law they have adopted for themselves since the inception of our legal system and therefore cannot be discounted when one is dealing with persons under the law.

Furthermore, the Constitution, 1992 gives a clue as to its applicability to artificial persons in article 12(1) thereof as follows:

“12. (1) The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.”

(The emphasis is mine.) This certainly shows that the Constitution, 1992 itself is aware of the difficulties inherent in its enforceability with respect to artificial persons and even natural persons and [p.438] of [1997-98] 1 GLR 378 therefore settles down for the extent to which that is possible. Therefore the provisions of article 2 of the Constitution, 1992 could be applied to artificial persons so far as they are applicable. In any case, the veil of incorporation can be lifted if necessary or its principles simply read with such modifications, qualifications or adaptations necessary to bring them into conformity with the provisions of the Constitution, 1992 since they are inferior to that supreme law. The doctrine of necessity could also be invoked in such a situation to enable the real culprits to be reached by the Constitution, 1992. The argument in favour of the Attorney-General’s contention has not only been judicially endorsed in minority judgments but its consequence, if accepted, would be to place artificial persons completely outside the supremacy of the Constitution, 1992 when it comes to enforcing it by the Supreme Court under article 2. It would even mean that since an alien cannot contest parliamentary and presidential elections in Ghana: see articles 62(a) and 94(1)(a), and it would therefore be absurd to impose a ten year disqualification on him under article 2(5) of the Constitution, 1992; he should also be outside the purview of article 2 of the Constitution, 1992.

Again, it would mean that the rights conferred on corporate bodies such as political parties and the media under chapters 7 and 12 of the Constitution, 1992 which do not fall under the fundamental human rights and freedoms in chapter 5 of the Constitution, 1992 and which are enforceable by the High Court, cannot be enforced under article 2 of the Constitution, 1992 either. The purview of article 2(1) of the Constitution, 1992 however plainly comprehends their enforcement. I therefore hold that since article 2(1) relates to actions by a person and since a person under section 32 of the Interpretation Act, 1960 (CA 4) includes corporate and unincorporated persons and the context of the Constitution, 1992, referred to supra, taken as a whole, contemplates enforceability of its provisions by and against such persons, they can sue and be sued under article 2(1) of the Constitution, 1992.

For these reasons, I am also unable to accept the contention of the honourable Attorney-General that “freedom of association is a personal right which cannot be applied to fictitious legal persons [p.439] of [1997-98] 1 GLR 378 such as incorporated bodies or unincorporated associations.” Article 21 of the Constitution, 1992 which confers these rights relates in clause (1) thereof to “All persons” and I have already set out the scope of the expression “person” and that clause inherently shows that it applies to artificial persons by, for example, extending the very first right under paragraph (a) thereof to “freedom of speech and expression, which shall include freedom of the press and other media.” (The emphasis is mine). The press and media of course relate to artificial persons. I would, however, remark that the case law as to locus standi for constitutional actions does not reveal a consistent and therefore very predictable pattern. It is axiomatic to state that the provisions governing enforceability of the Constitution, 1992 are largely the same as those contained in its predecessors of 1969 and 1979. In the case of Gbedemah v Awoonor-Williams (1970) 2 G&G 438, the Court of Appeal sitting as the Supreme Court per Azu Crabbe JA (as he then was) held that:

“Some of the cases decided by the Supreme Court of the United States have established certain principles which I think will be of some assistance in the interpretation of our Constitution. It has, or instance, been held that in contesting the validity of a statute, the issue must be raised by a party who is adversely affected personally and not a stranger to the operation of the statute. Lampasas v Bell, 180 U.S. 276, 284 (1901). It is essential that the party adversely affected must have a real or substantial interest in the controversy.”

Though this was a dissenting judgment, the other members of the court did not quarrel with this proposition and indeed in Benneh v The Republic [1974] 2 GLR 47 at 81, CA (full bench), when the point was taken it was not rejected but it was held that on the facts of that case it flavoured strongly of a “merit argument.” In Bilson v Apaloo [1981] GLR 24, SC the erstwhile Supreme Court per Anin JSC for the majority, with Adade JSC concurring on this point, reiterated this principle of standing in no uncertain terms in relation to article 2 of the Constitution, 1979.

Upon promulgation of the Constitution, 1992, however, several actions which did not satisfy this principle of locus standi

[p.440] of [1997-98] 1 GLR 378 have been entertained, see eg New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC, New Patriotic Party v Rawlings [1993-94] 2 GLR 193, SC and Ghana Bar Association v Attorney-General [1994-95] GBR 290, SC. It is axiomatic that a citizen of Ghana needs no locus standi to defend the Constitution, 1992. But others that have done so cannot be called citizens and the present plaintiff is certainly not a citizen of Ghana. However, for the reasons I have earlier stated in this judgment and for the fact that most of the post Constitution, 1992 cases have entertained actions aforesaid expressly under article 2(1) of the Constitution, 1992, provided one is a person within the same, I would say that the old principle of standing has been discarded, though in Bilson v Attorney-General [1993-94] 1 GLR 104, SC it was re-asserted.

For these reasons, I resiled from the view I earlier held of this case, before writing this judgment, that the plaintiff lacks locus standi. I however lament that the departure from the old principle of locus standi has been effected, substantially, sub silentio and without the judicial ceremony befitting the status of the doctrine of stare decisis. Ceremony in this context requires an anxious and due consideration of the old principle and a reasoned indication of the need for departure from it. The fact that the old authorities on locus standi were not binding stricto sensu on this court does not detract from their persuasive status: see In re Agyepong (Decd): Donkor v Agyepong [1973] GLR 326, CA.

On the issue as to the justiciability of the Directive Principles of State Policy in chapter 6 of the Constitution, 1992, I agree with the views of Charles Hayfron-Benjamin JSC and of Bamford-Addo JSC in New Patriotic Party v Attorney General (supra) that they are not justiciable but indicate the spirit or conscience of the Constitution, 1992 and provide goals for legislative programmes and a guide for judicial interpretation. The words of article 34(1) of the Constitution, 1992 make it clear that they only come in to “guide” when one is applying or interpreting the Constitution, 1992.

In Youhana v Abboud [1974] 2 GLR 201, CA the Court of Appeal had to grapple with similar provisions in paragraph 64(1) of the Courts Decree, 1966 (NLCD 84), which provided that:

[p.441] of [1997-98] 1 GLR 378

“64. (1) Subject to the provisions of any enactment other than this sub-paragraph, in deciding whether an issue arising in civil proceedings is to be determined according to the common law or customary law and, if the issue is to be determined according to customary law, in deciding which system of customary law is applicable, the court shall be guided by the following rules, in which references to the personal law of a person are references to the system of customary law to which he is subject or, if he is not shown to be subject to customary law, are references to the common law … “

(The emphasis is mine.) Apaloo JA (as he then was) commenting on this said at 210:

“I cannot bring myself to believe that in making these rules for our guidance, the legislature intended to change the law or turn its back on the decisions of the courts which for the best part of a century, have opted for the personal law of an intestate, meaning by this, the law of his domicile of origin. The rules are said only to be for our guidance. In a matter on which case law has thrown considerable light, one should be slow in putting any construction on an oblique legislative guidance which offends against one’s sense of propriety and fairness. In any case, I think since these rules are only to guide us I do not consider that they should be interpreted as compulsive.”

Archer JA (as he then was) at 218 said:

“What was the origin of these rules in section 49 of the Courts Act, 1971? When Ghana opted for a Republican Constitution in 1960, it became necessary to define the laws of the country and to retain what English law appeared to be acceptable to the needs of the country. When the Courts Act, 1960 (CA 9), was passed, it was found expedient to provide certain rules for the guidance of the courts when adjudicating on matters involving parties who are not subject to the same customary law—a problem usually referred to as the internal conflict of laws. As far back as 1956, attempts had been

[p.442] of [1997-98] 1 GLR 378 made in Nigeria to provide rules to regulate the choice of law in customary and native courts.” See Customary Courts Law, 1957 (WR No 6 of 1957) and Native Courts Law, 1956 (NR No 6 of 1956) of the Western and Northern Regions of Nigeria, respectively quoted in Allott, Essays in African Law at p

174. Ghana thought it wise to have similar but less complicated rules for the guidance of all the courts and accordingly,[sic](10) the first rules were enacted in section 66 of the Courts Act, 1960 (CA 9). In this connection I wish to quote what Bennion says in his textbook, The Constitutional Law of Ghana at p 452 as follows:

“The opening words of sub-section (1) provide that the court shall be guided by the following rules. This wording is intended to show that the rules are laying down principles rather than rigid instructions. There may well be cases where the rules will not fit exactly as they stand … Nevertheless, in a case where the rules do not fit exactly the court in being guided by the principles they lay down, should find no difficulty in extending them by analogy.”

(The emphasis is mine.) Then in Youhana v Abboud (supra) at 226 Archer JA (as he then was) lamented as follows: “Rules that were originally intended to play the role of a guiding star, now have the proclivity of leading us into an unnecessary skein … “

In my opinion, the above passage quoted from Bennion correctly states the legal position. This applies, mutatis muntandis, to the Directive Principles of State Policy, which provide rules of construction to be applied when interpreting other provisions of the Constitution, 1992, just as at common law there is a great body of rules for the construction of statutes, one of which I will presently apply, (though these common law rules suffer the theoretical deficiency that they are not rules of law, strictissimi juris). I concede that in view of the provisions of article 33(5) of the Constitution, 1992 some of the provisions of the Directive Principles of State Policy may after all pass for supplementary “rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned. . .” [p.443] of [1997-98] 1 GLR 378

But even here the Directive Principles of State Policy could still be confined to their role as affording guidance in the interpretation of article 33(5) of the Constitution, 1992 and in that process of interpretation certain further rights, etc would be thereby ascertained.

The reliance by the plaintiff apparently on the all-embracing provisions of article 2(1)(a) and (b) to buttress justiciability of the directive principles can be misleading. That provision is a general provision, whilst the provisions of article 34(1) as to the effect of the Directive Principles of State Policy are specific provisions. On the rule of construction of statutes that verba generalia specialibus non derogant, I would hold that the general words of article 2(1)(a) and (b) aforesaid cannot colonise the special provisions of article 34(1) of the Constitution, 1992. As Aikins JSC said in New Patriotic Party v Rawlings (supra) at 212:

“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 is an application of the maxim generalia specialibus non derogant. This special provision stands as an exceptional proviso upon the general. It is only where it 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 … “

Having regard to the excerpts copiously set out by my sister Bamford-Addo JSC in her opinion delivered in the instant case and also in New Patriotic Party v Attorney-General (supra) from paragraphs (94)-(97) of the Report of the Committee of Experts on Proposals for a Draft Constitution of Ghana concerning the true intendment of the provisions of the Directive Principles of State [p.444] of [1997-98] 1 GLR 378

Policy, I cannot see how the framers of the Constitution, 1992 can be said to have intended only to establish a rule of universal application in article 2(1)(a) and (b), in such a way, at any rate in relation to article 35(1), that the latter “must give way thereto.” It will also be observed that despite the wide ambit of article 2(1)(a) and (b), it has been held that they do not extend to: (a) the enforcement of the fundamental human rights: see article 130(1) as interpreted in Edusei v Attorney-General [1996-97] SCGLR 1, decided on 13 February 1996 (though the issue is still much debated), and (b) the proceedings of Parliament, see Tuffour v Attorney-General [1980] GLR 639 and Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598, SC, decided on 5 December, 1995.

As to the enforceability of international instruments relating to fundamental human rights, I think that the matter can easily be resolved by recourse to article 33(5) of the Constitution, 1992 which provides that: “The duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.”

It cannot be contended that the principles of those instruments do not fit into this provision, and they are therefore, to that extent, enforceable.

On the final issue regarding the constitutionality vel non of the Council of Indigenous Business Associations Law, 1993 (PNDCL 312), my mind was agitated by the provisions of section 4 regarding membership of the council; section 6 regarding the appointment of an executive secretary and a national treasurer of the council; and the establishment of regional and district branches thereof under sections 7 and 8 whereunder the Secretary (now Minister) for Mobilization and Social Welfare wields enormous powers.

But in the long run, the decision arrived at must truly be right as one sees it in the light of the law. Hayfron-Benjamin (as he then

[p.445] of [1997-98] 1 GLR 378 was) said in People’s Popular Party v Attorney-General [1971] 1 GLR 138 at 140:

“The powers conferred on the High Court by article 28(2) are wide in the extreme, but they seem to me to reflect the general intention of the drafters that the courts should be the custodians and protectors of the liberties of the individual citizens of Ghana. It is a duty which is at once onerous and honourable. In discharging these duties the courts must tread the narrow, humble but fine path between the Scylla of overzealousness and the Charybdis of judicial timidity. Where the liberty of the citizen has been invaded they should by all means offer protection, but they should not try to find an invasion where none has occurred.”

I think, mutatis mutandis, this pronouncement is applicable to any judicial task before this court. Against this background, therefore, I have no hesitation in striking down, as unconstitutional, section 4(1) of PNDCL 312 which provides that “The associations specified in the Schedule to this Law shall be registered with the Council.” The effect of this, coupled with the other ensuing regulative provisions, is to compel association by conscription with the council established by PNDCL 312. This negates rather that restricts the right to freedom of association: see dicta of Aikins and Hayfron-Benjamin JJSC in New Patriotic Party v Inspector-General of Police [1993-94] 2 GLR 459, SC. The Attorney-General’s assertion of consent by those bodies has not been proved and cannot be said fairly to have been admitted on the pleadings, seeing that by the procedure of this court, in original actions, a reply is not catered for as in the High Court. In any case, that issue cannot be said to be excluded from a fair reading of the memorandum of issues since the grounds for unconstitutionality are widely couched therein.

Article 21(1)(e) of the Constitution, 1992 provides:

“21. (1) All persons shall have the right to— …

(e) freedom of association, which shall include freedom to form or join trade unions or other

[p.446] of [1997-98] 1 GLR 378 associations, national and international, for the protection of their interest … “ I have already held that “persons” therein includes by virtue of section 32 of CA 4, unincorporated bodies of persons.

However, the combined effect of sections 4(2)-(5) of PNDCL 312 makes it clear that registration of associations other than those under section 4(1) thereof is to be by application by those associations concerned, with the approval of the secretary. Therefore if any association pursuant thereto comes under the umbrella of the Council of Indigenous Business Associations it is clear that it would thereby have done so in exercise of its own freedom of association under article 21(e) of the Constitution, 1992 aforesaid. The exercise of that constitutional right by such an association ought to be upheld rather than denied by this court. Once the membership has not been compelled, the application of the other provisions of PNDCL 312 to the association concerned flows from the foundation of voluntary association with the council, ab initio. There is no compulsion in this or if there be any, it is legitimate, for the members of a voluntary organisation or of the body established under PNDCL 312 can mutually compel each other to observe the terms of their association set out in the said Law. A person voluntarily joining an association is deemed to have accepted its terms, see by analogy, Osman v Kaleo (1970) 2 G & G 512, CA sitting as SC and Pennie v Egala [1980] GLR 234.

I do not think that the Constitution, in relation to the fundamental rights ordains compulsory rights; it provides them. They can only be compulsory if insisted upon by the doneesic(11) against third parties: see Okorie alias Ozuzu v The Republic [1974] 2 GLR 272, CA. When the right of association is read in conjunction with the guidance of article 37(2)(a) of the Constitution, 1992 on the rights of associations to use those associations to promote their developmental interest, it will be seen that in substance PNDCL 312, save section 4(1) thereof, aforesaid caters for the true intendments and purposes of the Constitution, 1992 and cannot be unconstitutional.

There is no denial of any right to dissociate from the council once registered as contended by the plaintiff. If anything section 5(2) of PNDCL 312 provides: “A member of the Executive [p.447] of [1997-98] 1 GLR 378

Committee shall upon ceasing to be a member of the Council cease to be a member of the Executive Committee.” This shows that cessation of membership of the council which includes dissociation from it, is contemplated by the Law.

I would like to greatly thank counsel on both sides for the most able and serious manner in which they tackled this case and assisted me in finding my way out of the legislative entanglements involved. It was for these reasons that, I dismissed the plaintiff’s action, save striking down section 4(1) of PNDCL 312 as being inconsistent with article 21(1)(e) of the Constitution, 1992.

JUDGMENT OF AKUFFO JSC.

The nature of the plaintiff’s claim herein has already been adequately described by other members of this panel in the course of their opinions and I, therefore, do not intend to set them out. The issues, as agreed between the parties, are as follows:

“(1) whether or not the Council of Indigenous Business Associations Law, 1993 (PNDCL 312) is inconsistent with and a contradiction of the letter and spirit of the Constitution and in particular, articles 21(1)(e), 35(1), 37(2)(a) and (3) thereof;

(2) whether or not articles 35(1), 37(2)(a) and (3), which fall under chapter 6 of the Constitution, 1992 are justiciable;

(3) whether or not the appropriation of public funds to the Council of Indigenous Business Associations set up under PNDCL 312 is consistent with the Constitution, 1992 both in its letter and spirit;

(4) whether or not the United Nations Universal Declaration of Human Rights and the African Charter on Human and Peoples Rights are binding on the states signatories including Ghana; and if so,

(5) whether or not Ghanaian municipal law can override the provisions of the said international instruments; and if so,

(6) to what extent are the said declaration and charter binding on Ghana.”

[p.448] of [1997-98] 1 GLR 378

On 18 November 1996 the defendant, with the leave of this court, filed a supplementary submission which raised a preliminary legal point as to the capacity of the plaintiff to bring an action under article 2(1) of the Constitution, 1992. In essence, it was the contention of the defendant that only natural persons have the right to bring an action under article 2(1) of the Constitution and that, therefore, the plaintiff, being a fictitious personality, has no locus standi in this case. The broader connotation of the issue raised by this contention is the question of whether or not an artificial legal person has the requisite capacity to institute proceedings under article 2(1) of the Constitution, 1992.

Article 2(1) of the Constitution, 1992 reads as follows:

“2. (1) A person who alleges that—

(a) an enactment or anything contained in or done under the authority of that or any other enactment; or

(b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

As was correctly summarised by the honourable Deputy Attorney-General, the issue of capacity, as raised, boils down to the interpretation of the word “person.” It is a basic rule in the interpretation of statutes that words used in an enactment must be given their ordinary and natural meaning. However, as was pointed out by Sowah CJ Republic v High Court, Accra; Ex parte Adjei [1984-86] 2 GLR 511 at 518-519, SC:

“… the narrow rules of construction applicable in the cases of contracts, wills, statutes and ordinary legislation may or may not be adequate when it comes to the interpretation of a Constitution or law intended to govern the body politic … Our interpretation should therefore match the hopes and aspirations of our society and our predominant consideration is to make the administration of justice work.”

[p.449] of [1997-98] 1 GLR 378

Similarly, his lordship had, in the earlier case of Tuffour v Attorney-General, [1980] GLR 637 at 647-648, CA sitting as SC, expressed himself thus:

“A written Constitution such as ours is not an ordinary Act of Parliament … The Constitution has its letter of law. Equally, the Constitution has its spirit … Its language, therefore, must be considered as if it were a living organism capable of growth and development … A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time.”

(The emphasis is mine.) In a similar vein, my learned brother Charles Hayfron-Benjamin JSC, in enunciating the principles for the interpretation of our current Constitution, 1992 in the case of New Patriotic Party v Attorney-General [1993-94] 2 GLR 35 at 168, SC said:

“There is no benefit in these modern times in applying a strict interpretation to modern democratic Constitutions. So to do would mean that we forget that Constitutions are made by men for the governance of men.”

The need to adopt a more flexible stance and prefer the broad and liberal meaning in the interpretation of a national Constitution is a well established approach. Indeed, as has been noted by SY Bimpong-Buta, in chapter 9 of his book The Law of Interpretation in Ghana, such an approach is not peculiar to this jurisdiction and it is my view that it is, indeed, the only approach which will secure the living nature of the Constitution and avoid a stultification of our national development and the establishment of a just and free society.

Unlike article 33 of the Constitution, 1992 which relates only to the protection of a person’s fundamental human rights and freedoms, article 2, together with articles 1 and 3, are intended to safeguard the integrity of the Constitution, 1992 as a whole. As was correctly pointed out by counsel for the plaintiff in his supplementary submissions, article 1(2) of the Constitution, 1992 [p.450] of [1997-98] 1 GLR 378 means exactly what it says, ie any law found to be inconsistent with any provision of the Constitution is, to the extent of such inconsistency, void, and “the voidness comes into effect by constitutional fiat or operation of the Constitution.” Reading article 2 alongside article 1(2) of the Constitution, 1992, there can be no doubt that the purpose of article 2 is to create the mechanism for the formal declaration of such voidness. Therefore, the pertinent questions one needs to pose are that, in the protection and enforcement of the supreme law of Ghana, the Constitution, 1992, is there any cogent reason for “person” to be limited to natural persons? Moreover, how would such a limited access to the courts for the purposes of enforcement advance the goals and objectives of the Constitution, 1992 and the spirit in which it has been promulgated? And how would such a limitation, necessarily, nurture the growth potential of the Constitution?

What is at stake here is not merely the question of the right of access of political parties to this court under article 2(1) of the Constitution, 1992, the question also involves all other corporate bodies. Thus, the potential for the politicisation of constitutional cases, to which the honourable Deputy Attorney-General made reference in his supplementary submission, cannot be a controlling factor in a determination of the meaning and scope of article 2(1) of the Constitution, 1992. In these present times, when there is increasingly, the tendency for natural individuals to join together to form corporate bodies for the advancement and pursuit of their common interests and causes, be they social, economic or political, the artificial legal person has become, and is increasingly becoming, a very important factor in the advancement of human endeavour and a potent vehicle for the individual’s effective participation in national development processes of varying nature. Furthermore, in our aspiration towards national economic development, wherein our economy, and indeed the global economy, is increasingly driven by corporate enterprise, rather than the enterprise of the natural individual, it is inescapable and even essential that, the role of the artificial person be given its due weight.

Therefore, to hold that the right to seek the enforcement of the Constitution, 1992 resides solely in natural persons would be to deny to an essential segment of participants in our national [p.451] of [1997-98] 1 GLR 378 economy and other national development processes, a direct access to this court, except via the agency of a natural person. The result of such a denial would be that, although artificial legal persons are capable of influencing the direction of our national and socio-economic development, they are incapable of participating in the protection of the integrity of the Constitution, 1992 or the assurance of its enforcement; and, for so long as they are not in breach of anyone’s fundamental rights and freedoms, they cannot directly be held responsible for their acts and omissions which are inconsistent with and in contravention of the Constitution; even though the Constitution is the foundation for the achievement of the desired social economic and political goals and objectives.

Since the promulgation of the present Constitution, 1992 this is not the first time that an artificial legal person has instituted an action under article 2(1) and, indeed, a significant segment of the constitutional case law so far generated, has stemmed from actions brought by the plaintiff herein and another artificial legal person, the Ghana Bar Association. In all of these earlier cases, this court, appears to me to have proceeded upon an underlying assumption that such plaintiffs therein had the requisite capacity, despite their artificial legal personality.

Although the capacity of the Ghana Bar Association to being an action in its own name under article 2(1) of the Constitution, 1992 arose for determination in the case of Ghana Bar Association v Attorney-General [1994-95] GBR 290, SC, the issue took the form of whether or not the said association had legal personality in the first place, and not, as in this case, whether or not, as an artificial legal person, it had the requisite capacity. However, the word “person” did arise for interpretation in the case. The learned Deputy Attorney-General, in that case, had not questioned the capacity of the Ghana Bar Association to bring the action as an artificial person and, as was correctly, observed by my esteemed brother Kpegah JSC, in his opinion therein at 317, both parties had appeared to be ad idem that: “a legal or artificial person is within the contemplation of article 2(1) when the word ‘person’ comes to be construed. Their point of departure is the legal status of the ‘Ghana Bar [p.452] of [1997-98] 1 GLR 378

Association; whether it has that legal or artificial personality to bring an action under the said article 2(1) or not.”

The consensus of the majority, in the said case, was that a legal person such as the Ghana Bar Association can, indeed, sue and be sued for a declaration in the Supreme Court. To my mind, this conclusion is irresistible if one takes the broad and liberal approach. The honourable Deputy Attorney-General, in his supplementary submissions herein, made the observation that, under our previous Constitutions, actions for enforcement pursuant to provisions similar to article 2(1) of the Constitution, 1992, had been instituted, in each case, by natural persons and it is only under the present Constitution, 1992 that, for the first time, artificial legal persons have sought enforcement. This is, indeed, so. However, in my opinion, this new development is a positive one in tune with the spirit of the Constitution, 1992 and the liberal environment created thereby.

From a broad and liberal standpoint, therefore, the meaning of the word “person” in the general context of the Constitution, 1992 must be derived from the particular context in which it is utilised in any particular provision. Where the context lends to the word a broader meaning which includes artificial legal persons, that meaning must be assigned, and where, in the context, it is capable of only a meaning limited to natural persons, it must be so limited. As was articulated by my esteemed brother Kpegah JSC, in his dissenting opinion in the Ghana Bar Association case (supra) at 320:

“. .. the word person is one of the words the meaning of which must be controlled by the context in which it is used. It is, therefore, a word in respect of which it is dangerous to make any presumptions; but rather prudent to let the context determine its meaning.”

Elsewhere in his learned opinion, Kpegah JSC also said at 326:

“It seems certain, and this is beyond the possibility of argument, that whether the word ‘person’, which may include an artificial person when used in a [C]onstitution does in [p.453] of [1997-98] 1 GLR 378 fact include such person, depends on the object and context in which the word is employed.” Thus, for example, the use of the word in articles 13 and 14 of the Constitution, 1992 clearly relates to the natural person, since it is only a natural person whose life and personal liberty could possibly be at risk of unjust deprivation. However, in my view, the use of the word in article 2(1) of the Constitution, 1992, means both a natural person as well as an artificial legal person. In conclusion, it is my opinion that the meaning of the word “person” as used in article 2(1) of the Constitution, 1992 is not limited to natural pesons[sic](12) only, but includes artificial legal persons. The plaintiff, therefore, has the requisite capacity to bring this action under article 2(1).

Which brings us to the main issues, of which I intend to deal with only the first three, since I am in agreement with my learned sister Bamford-Addo JSC regarding the relationship between international human rights instruments and municipal laws and have nothing meaningful to add. For the sake of convenience, I will deal with issues (1) and (3) together. These issues are whether or not the Council of lndigenous Business Associations Law, 1993 (PNDCL 312) is inconsistent with and a contravention of the letter and spirit of the Constitution, 1992 and in particular, articles 21(1)(e), 35(1), 37(2)(a) and (3) thereof; and whether or not the appropriation of public funds to the Council of Indigenous Business Associations set up under PNDCL 312 is consistent with the Constitution, 1992 both in its letter and spirit. The first issue, as it stands, places PNDCL 312 in its entirety in question. However, in his written submissions, counsel for the plaintiff only made reference, in particular, to sections 4(1) and (2), and 6 of PNDCL 312 and submitted that:

“these provisions remove from the associations concerned any semblance of voluntariness or freedom to act as they consider best for themselves with regard to whether they should take steps in concert with other organisations or by themselves alone. These provisions put the administration of and control of CIBA under the authority of a Minister of State.”

[p.454] of [1997-98] 1 GLR 378

Before examining these particularised sections of PNDCL 312, I will first deal with the enactment in general. PNDCL 312 establishes a council to be known as the Council of Indigenous Business Associations (hereinafter referred to as CIBA) which is made up of representatives of each of the associations registered with it; a representative of the Ministry of Mobilisation and Social Welfare and the executive secretary and national treasurer appointed under section 6 of the enactment. Under section 3 of PNDCL 312, the functions of the CIBA, are to:

“(a) register applicants under this Law;

(b) monitor the operations of the registered associations with a view to recommending improvements;

(c) foster harmony and understanding among member associations;

(d) provide such information and advice on matters relatiing[sic](13) to the interests of member associations as they may request;

(e) act as the representative of member associations in any negotiations with the Government.” The Law then proceeds to deal with the membership of the CIBA; its governance; the appointment of its key officers; the establishment of its national, regional and district offices and branches; the source of its funds; financial controls; the power of the secretary to regulate the CIBA by legislative instruments and, defines “Secretary” to mean the PNDC Secretary responsible for Mobilisation and Social Welfare. It appears to me to be quite apparent that the basic objective of this PNDCL 312 is to foster and promote the development of the indigenous business sector of the country through the establishment of a council which would function as the mouthpiece of the member associations and the vehicle for the effective promotion of the interest of the members. Viewed thus, I fail to see in what manner the Law might be faulted on constitutional grounds. I would even venture further to say that the objective of the Law is one which flows from the principles of article 37(2)(a) of the Constitution, 1992, in that it is a positive step towards the achievement of effective participation in development processes [p.455] of [1997-98] 1 GLR 378 by indigenous businesses. The appropriation of public funds for the council is, therefore, consistent with the Constitution, 1992.

The only problem, however, is that, in achieving its objective, sections 4 and 6 have been included in the Law. Section 4 of PNDCL 312 reads[sic](14) follows:

“4. (1) The associations specified in the Schedule to this Law shall be registered with the Council.

(2) There shall also be registered with the Council such associations of Ghanaian indigenous business as the Secretary may approve.

(3) Application for registration shall be in such form as the Council may after consultation with the Secretary direct …

(5) There shall be paid in respect of each registration such fee as the Secretary may prescribe.” And section 6 of PNDC 312 states that:

“6. (1) There shall be appointed by the Secretary in consultation with the Council an Executive

Secretary of the Council.

(2) The Executive Secretary shall under the direction of the Executive Committee be responsible for the day to day administration of the business and affairs of the Council.

(3) The Council shall have a national treasurer who shall be appointed by the Secretary in consultation with the Council.

(4) The appointment of the Executive Secretary and the national treasurer shall be made on such terms and conditions as the Secretary in consultation with the Public Services Commission shall determine.”

As already stated above, it is at these provisions—or rather parts thereof—that the plaintiff particulary aims its challenge herein. The cumulative effect of these provisions, to my mind, is that the CIBA is to be an exclusive club, the membership of which is primarily limited to the associations listed in the Schedule, and secondarily, to such other associations as shall have the fortune of obtaining the discretionary approval of the secretary (herein

[p.456] of [1997-98] 1 GLR 378 after referred to as the minister) for membership; the fees for membership are to be prescribed by the minister; furthermore, the minister is to be the appointing authority of the two key functionaries of the CIBA, ie the executive secretary and the national treasurer, with the CIBA playing only a consultative role and, additionally, the conditions of service of such functionaries are to be determined by the minister, in consultation with the Public Services Commission, not the CIBA. Presumably, the minister is also the disciplining authority, with the CIBA playing, at best, merely a consultative role.

Moreover, since section 4(1) of PNDCL 312 is expressed in categorical terms, it has compelling effect on the associations listed in the schedule. Consequently, I agree with the plaintiff’s submission that the result is to compel the listed associations to register with the council, and to place the administration of CIBA under the effective control and authority of a minister of state. The question, however, is whether this effect makes the sections or the Law unconstitutional. The plaintiff’s contention is that this amounts to State interference with the freedom of association of the named associations, and by extension, that of the members who make up the associations, contrary to article 21(1)(e) of the Constitution, 1992 and is, therefore, unconstitutional. The Attorney-General’s submissions on this score may be summed up as follows:

(a) The rights guaranteed by article 21 of the Constitution, 1992 are all personal human rights which cannot be applied to artificial legal persons and although, the right to property is applicable to non-natural persons, freedom of association can only be enjoyed by human beings.

(b) PNDCL 312 regulates the activities of associations and not those of individuals and, therefore, it does not in any manner affect the right of the individual members of the listed associations to associate with others or to dissociate from the listed organisations and join any unlisted association.

(c) The role of the minister, as stipulated under PNDCL 312 does not amount to interference because, first, PNDCL 312 was promulgated at the request of the listed associations to enhance their effective participation in the

[p.457] of [1997-98] 1 GLR 378 development process; secondly, the minister’s role does not affect the associations and thirdly, the powers of the minister are to be exercised in consultation with the council or the Public Services Commission, as the case maybe.

(d) PNDCL 312 is in the interest of the public and is fully in line with the Directive Principles of State Policy, particularly articles 35, 36, and 37 of the Constitution, 1992 which deal with the political, economic and social objectives that must be pursued by the government.

(e) Article 109(1) of the Constitution, 1992 empowers Parliament to enact any laws for the regulation of professional, trade and business organisations and the listed associations fall into these categories.

Article 21 falls under chapter 5 of the Constitution, 1992 which chapter is entitled “Fundamental Human Rights and Freedoms.” It is trite law that headings and marginal notes inserted in any enactment (including a Constitution) are for convenience and reference only and do not form part of the enactment. Thus, as was duly acknowledged by the Deputy Attorney-General in his submissions, there are some rights and freedoms, included in the chapter, which are as equally applicable to natural persons as they are to artificial legal persons, such as freedom from discrimination and the right to personal property. For the purposes of this suit, the relevant part of article 21(1) the Constitution, 1992 states that: “21. (1) All persons shall have the right to—

(e) freedom of association, which shall include freedom to form or join trade unions or other associations, national and international, for the protection of their interest.”

From these words, I find it rather difficult to derive an interpretation that this freedom is applicable only to human beings. The Trade Union Congress is composed solely of trade associations, not individual human beings; the Ghana Chamber of Commerce and the Ghana Employers’ Association both consist mainly of legal corporate bodies, and I am not aware that there are any individual human beings who are members of the

[p.458] of [1997-98] 1 GLR 378

International Labour Organisation. Thus, the only reasonable interpretation I can place on this article is that the right of artificial bodies to seek membership of these organisations are as equally protected as are those of natural persons. As I have already stated above, the word “person”, as used in the Constitution,

1992 must be interpreted in accordance with its context. Therefore, to the extent that a professional, trade, business, social or political association or union is legally capable of forming or joining an association or organisation, the right and freedom to do so, is, to my mind, guaranteed by article 21(1)(e) of the Constitution, 1992. Indeed, without any specific words of limitation, I am at a loss in discovering any reason why this constitutional freedom must be limited only to natural persons. In my opinion, therefore, the constitutional guarantee of freedom of association is applicable to artificial legal persons. This leads to the question of whether or not PNDCL 312 interferes with this constitutional right. In my opinion, the mere creation of the council with the functions assigned to it does not amount to an interference with the freedom of association. However, the language of section 4(1) of PNDCL 312 creates a categorical imperative and no amount of semantics regarding circumstances when the word “shall” is compelling and when it is only permissive, nor the fact that there is no sanction provided by the Law for failure to register with the council, can in this instance, persuade me to the contrary. Furthermore, and to the extent that the law limits membership of the council only to the listed associations and such associations as may, at ministerial discretion, be admitted to membership, it is also discriminatory. It may be a fact that the listed associations had petitioned the government to enact a law “to enable them to freely operate under the umbrella of a council similar to the Trades Union, Congress.” At best, such a petition was merely to highlight to the government the pressing need to create a co-ordinating body for fostering the effective participation of an important segment of the private enterprise sector in the national development processes. In satisfying this need, however, the reasonable remedy is not the establishment of a state sponsored exclusive club for a chosen few. In the true spirit of the Constitution, 1992 it ought to be open to any association of any indigenous business sector to seek [p.459] of [1997-98] 1 GLR 378 membership, and without the prior approval of the minister. Furthermore, the role assigned to the minister to appoint the key officials, set their conditions of service, and fix registration fees is intrusive and also amounts to interference. Admittedly, under article 109(1) of the Constitution, 1992 Parliament is empowered to regulate by law professional, trade and business organisations. However, sections 4 and 6 of PNDCL 312 do more than regulate, they create such extensive ministerial control as to render the council, and by extension the member associations thereof, a mere rubber stamp of ministerial decisions. In the light of the foregoing, these provisions of PNDCL 312 are not in consonance with article 21(1)(e) of the Constitution, 1992. They are also contrary to the spirit of the Constitution, 1992 as enunciated in article 37(1) and (2). In conclusion, therefore, it is my opinion that sections 4(1), (2), (3) and (5), and 6(1), (3) and (4) of PNDCL 312 are unconstitutional and void. However, the rest of the enactment are, in my opinion, constitutional.

Regarding the issue of the justiciability of chapter 6 of the Constitution, 1992 counsel for the plaintiff contended that the chapter is part of the Constitution and, by virtue of the provisions of articles 1(2) and 2(1) of the Constitution, 1992, it is abundantly clear that every provision of the Constitution, 1992 is not only justiciable but also enforceable and that the terms of article 34 are mandatory. The plaintiff, therefore, submitted that it is open to any person to challenge the action of any person on the grounds that they have failed to take into account any part of chapter 6 and that:

“. . . in the absence of clear provisions ousting the jurisdiction of this honourable court in the interpretation or application of any part of the Constitution, 1992, it would be erroneous to contend that such part is non-justiciable and that therefore this honourable court has no jurisdiction to make pronouncements by reference to the said part.”

The position taken by the plaintiff is similar to that enunciated by Adade and Aikins JJSC in the case of New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC. However, to my mind, the issue of justiciability which arises here is not so much whether or not this court has the jurisdiction to apply, or make

[p.460] of [1997-98] 1 GLR 378 pronouncements by reference to the directive principles. It is, rather, one of whether or not an action for enforcement may be founded solely on the provisions of the chapter, of and by themselves. The answer to this question is adequately given by the framers of the Constitution, 1992. The intentions of the committee of experts, when proposing the Directive Principles of State Policy, are quite clearly expressed in paragraphs 94-97 of chapter 4 of the committee’s report. The essence of these paragraphs is that the Directive Principles of State Policy are intended to function as the “core principles around which national, political, social and economic life will revolve.” They spell out “in broad strokes the spirit or conscience of the Constitution.” In paragraphs 95 and 96, the committee further explained the inclusion of the principles in the Constitution in the following terms:

“95. By tradition Directive Principles are not justiciable; even so, there are at least two good reasons for including them in a Constitution. First, Directive Principles enunciate a set of fundamental objectives which a people expect all bodies and persons that make or execute public policy to strive to achieve … a second justification for including Directive Principles in a Constitution is that, taken together they constitute, in the long run, a sort of barometer by which the people could measure the performance of their government. In effect they provide goals for legislative programmes and a guide for judicial interpretation.

96. The Directive Principles of State Policy are for the guidance of Parliament, the President, the Council of Ministers, Political Parties and other bodies and persons in making and applying public policy for the establishment of a just and free society. The principles should not of and by themselves be legally enforceable by any Court. The Courts should, however, have regard to the said Principles in interpreting any laws based on them.”

(The emphasis is mine.)

[p.461] of [1997-98] 1 GLR 378

Clearly, therefore, the principles serve as the ultimate litmus paper for testing the constitutional propriety or legality of every enactment, or the conduct of every person in Ghana. As far as the courts are concerned, the principles are intended to serve as an aid to the construction or interpretation of the Constitution, 1992 and all other laws. Thus, when an action is brought under article 2(1) of the Constitution, 1992 this court, in determining the issue, may fall upon the principles as an aid and guide. This does not in any way demote the principles to a secondary position relative to the other provisions of the Constitution. To the contrary, they constitute the golden weft that has to be perceptible in every aspect of the social, economic and political actions of “all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons” (cf article 34(1)). As the focal reference point, in the interpretation of any law or in the determination of the constitutionality of any law or action of any person, the final determinant is whether the spirit of the Constitution, 1992 as encapsulated by the principles, has been fulfilled. Where it is intended that specific principles are to be justiciable, they have been specifically stipulated in other parts of the Constitution as substantive articles. Thus, for example, the fostering of the right to own property, freedom of association, the prohibition of discrimination, declared in the directive principles, are also made enforceable by specific guarantees contained in other provisions. On the other hand, there are some principles, such as that contained in article 36 of the Constitution, 1992, whereby, as an economic objective, the State is required to. “take all necessary action to ensure that the national economy is managed in such a manner as to maximise the rate of economic development and to secure the maximum welfare, freedom and happiness of every person in Ghana …” which are by their broadly stated nature, intended to be policy guidelines, or the ultimate standards for measuring government performance. As was aptly stated by the honourable Attorney-General in his main submissions on behalf of the defendant, “ … the Directive Principles of State Policy present a mixed bag of justiciable and nonjusticiable issues.” It is, therefore, my opinion that, as with the whole of chapter 6 of the Constitution, 1992, articles 35(1), 37(2)(a) and (3), are not of and by themselves justiciable.

DECISION

Application allowed in part.

Endnotes

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