Her Honour Judge Sedinam Awo Kwadam (Mrs.)*
21st September, 2025.
ABSTRACT
This paper critically examines the Ghana Supreme Court’s 2017 decision in Banful & Another v Attorney-General & Another (“Guantanamo Judgment”), which invalidated an agreement for the resettlement of two former Guantanamo detainees due to non-ratification. The decision is critiqued as insular and diplomatically costly, imposing a disproportionate burden on treaty partners. The paper posits that the decision enabled the contravention of the Vienna Convention on the Law of Treaties (VCLT) by disregarding the legal principle of pacta sunt servanda (Article 27) and misapplying the narrow internal law exception (Article 46), effectively imposing an unjustifiable obligation on foreign states to scrutinize Ghana’s domestic procedures, thereby undermining the assumption of regularity, good faith, and the President’s exercise of authority in the national interest. Domestically, the decision departed from Ghana’s tradition of purposive constitutionalism, abandoning the pragmatic, internationally conscious approach of Delmas America Africa Line Inc v Kisko Products Ghana Ltd in favor of rigid dualism. By opting for outright invalidation rather than proportionate remedies such as ex post facto ratification, the decision prioritized form over function, weakening both constitutional accountability and international comity. Justice Atuguba’s dissent is highlighted as the path not taken, offering a framework that would have preserved executive authority in foreign affairs while providing for retrospective parliamentary oversight. The paper ultimately concludes that the decision exemplifies judicial insularity, undermining Ghana’s credibility as a treaty partner and eroding its constitutional tradition of purposive interpretative principles, with lasting legal and diplomatic repercussions.
- INTRODUCTION
Ghana’s Supreme Court’s 2017 decision in Banful & Another v Attorney-General & Another [1] stands as a pivotal and deeply concerning moment in the nation’s constitutional and diplomatic jurisprudence. The case, colloquially known as the “Guantanamo Case”, concerned a diplomatic agreement, formalized via a “Note Verbale”, between the Governments of Ghana and the United States of America to resettle two individuals formerly detained at Guantanamo Bay.[2] The plaintiffs successfully contended that this agreement constituted an “international treaty” within the meaning of Article 75 of the 1992 Constitution, and as such, required ratification by Parliament. The Court’s majority agreed, declaring the executive’s action unconstitutional and void ab initio.[3]
While the pursuit of democratic accountability and parliamentary oversight is laudable and lies at the heart of Article 75, the Banful decision represents a profound instance of judicial indulgence that prioritized procedural rigidity over substantive justice and international comity. This paper argues that the decision is fundamentally defined by two critical, interrelated missed opportunities.
First, the decision missed the opportunity to correctly apply established principles of international law, particularly the Vienna Convention on the Law of Treaties (VCLT).[4] In doing so, it not only contravened the foundational principle of pacta sunt servanda (agreements must be kept) but also conceived a narrow exception into an indefensible burden, requiring Ghana’s treaty partners to act as auditors of its internal constitutional processes.[5] Second, the decision missed the opportunity to employ Ghana’s rich tradition of purposive constitutional interpretation, a tradition it ironically invoked but failed to sufficiently apply.[6] Instead of adopting a remedy that balanced constitutional accountability with the realities of international diplomacy, such as requiring ex post facto parliamentary ratification, the decision chose the easier route of outright invalidation, prioritizing Ghana’s domestic protection at the expense of its international obligations.
This retreat from nuanced adjudication is particularly striking when viewed against the backdrop of the Court’s own history. The decision signifies an abandonment of the progressive, internationally conscious approach tentatively explored in Delmas America Africa Line Inc v Kisko Products Ghana Ltd [7] in favour of the rigid dualism reasserted in Republic v High Court, Ex parte Attorney General (NML Capital).[8] The Banful decision, however, applied this dualism in its most extreme form, with significant consequences for Ghana’s credibility on the world stage.
The analysis will proceed in four parts. Section 2 will dissect the decision’s fundamental deviation from the VCLT, focusing on its contravention of Article 27 and its misconceptualization of the exception under Article 46, which collectively imposed a disproportionate and legally untenable burden on the United States of America. Section 3 will critique the decision’s departure from Ghana’s jurisprudential tradition, arguing that the majority missed the chance to utilize a purposive approach to reconcile domestic constitutional requirements with international obligations, a forfeiture thrown into sharp relief by the dissent of Justice William Atuguba.[9] Having engaged with the legitimate counterarguments underpinning the decision, such as the classification of the “Note Verbale” and concerns over accountability and security, Section 4 will demonstrate why the chosen remedy was disproportionate and detrimental to Ghana’s credibility as a treaty party. The conclusion in Section 5 will then synthesize these critiques, positing that the decision’s legacy is one of missed opportunities to reconcile Ghana’s constitutional values with its international responsibilities, ultimately to the detriment of both.
- THE FIRST MISSED OPPORTUNITY: CONTRADICTING THE LAW OF TREATIES
The majority decision in Banful is anchored in a fundamental misapplication of the Law of Treaties, representing its first critical vulnerability. In its zeal to enforce domestic constitutional procedure, the decision contravened cornerstone principles of the Vienna Convention on the Law of Treaties (VCLT), a treaty to which Ghana is a party.[10] This resulted in a decision that is not only untenable in international law but also imposes an impractical and disproportionate burden on Ghana’s treaty partners.
2.1. The Article 27 VCLT Fallacy: A Missed Chance for Harmonization
Article 27 of the VCLT embodies one of the most fundamental principles of international law: pacta sunt servanda. It states unequivocally, “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”[11] This rule exists to ensure stability and predictability in international relations by insulating treaty obligations from the vicissitudes of domestic legal systems.
The Banful decision constitutes a direct violation of this principle. By declaring the “Note Verbale” agreement void ab initio due to the lack of parliamentary ratification, the decision effectively permitted Ghana’s internal law, specifically Article 75(2) of the 1992 Constitution, to serve as a justification for nullifying an international agreement.[12]
This approach collapses the crucial distinction, long recognized in international law and jurisprudence, between the international validity of a treaty and its domestic applicability.[13] As noted by Judge Rosalyn Higgins, the international obligation exists independently of the internal steps required to give it effect; a state cannot plead its own constitutional deficiencies as an excuse for non-compliance.[14]
The Banful decision represents a critical failure to harmonize Ghana’s constitutional order with its international legal duties. A jurisprudence more consistent with Article 27 of the Vienna Convention on the Law of Treaties would have properly delineated the agreement’s international binding character from its lack of domestic effect. The court’s remedy could have been an unequivocal declaration of unconstitutionality, while suspending the effect of its order to allow the executive to regularize the situation through ex post facto ratification. This nuanced solution would have preserved the principle of parliamentary sovereignty while avoiding the internationally wrongful act of repudiation. Regrettably, the decision facilitated a breach of Ghana’s treaty commitment, thereby undermining its credibility and reputation as a treaty partner on the global stage.
2.2. The Article 46 VCLT Misstep: Imposing an Indefensible Burden
The Banful decision’s error under Article 27 of the VCLT is compounded by a profound misconceptualization of Article 46 of the VCLT, which provides the only narrow exception to the rule in Article 27.[15] This exception allows a state to invoke a violation of its internal law only if that violation was “manifest and concerned a rule of its internal law of fundamental importance”. The VCLT clarifies that a violation is “manifest” if it would be “objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith”.[16]
The Banful decision inverted both the logic and the burden of proof embedded in Article 46. Rather than placing the onus on Ghana to demonstrate that its constitutional flaw was “objectively evident” to the United States, the majority decision imposed a positive “duty of due diligence” on the treaty partner to investigate Ghana’s internal procedures.[17] This is a legally untenable position that places a disproportionate and indefensible burden on other sovereign states. It directly contradicts international jurisprudence, such as the International Court of Justice’s ruling in the Land and Maritime Boundary between Cameroon and Nigeria case, which firmly stated that “there is no general legal obligation for States to keep themselves informed of legislative and constitutional developments in other States”.[18] The Banful decision’s dismissal of this principle as “untenable” reveals a startling insularity.[19]
Applying the correct legal test to the facts reveals the fallacy of this position. Article 75(1) of the Ghanaian Constitution explicitly vests the President with the power to “execute or cause to be executed treaties… in the name of Ghana”.[20] Regrettably, the decision facilitated a breach of Ghana’s treaty commitment, thereby undermining its credibility and reputation as a treaty partner on the global stage. This damage is compounded by the decision’s second flaw: its disregard for the principles of “good faith” in international relations. To any foreign state, the President’s signature is the definitive expression of consent, with parliamentary ratification being a non-manifest domestic formality. By forcing other nations to second-guess the internal actions of the Ghanaian executive, the decision inadvertently undermined the presidency’s authority, raised the transactional costs and risks of engaging with Ghana. The decision thus not only enabled an immediate breach but also erected lasting barriers to future diplomatic and economic agreements.
- THE SECOND ERROR AND MISSED OPPORTUNITY: ABANDONING GHANA’S PURPOSIVE CONSTITUTIONAL TRADITION
The Banful decision’s vulnerabilities extend beyond its misapplication of international law to a fundamental departure from established domestic principles of constitutional interpretation. This represents the decision’s second critical insufficiency: the abandonment of Ghana’s rich tradition of purposive constitutionalism in favour of a rigid, formalistic textualism that produced a disproportionate and diplomatically costly outcome.
3.1. A Historical Contradiction: From Progressive Incorporation in Delmas to Rigid Dualism in Banful
The jurisprudential regression in Banful becomes starkly apparent when viewed against the backdrop of the Court’s own precedent in Delmas America Africa Line Inc v Kisko Products Ghana Ltd.[21] In that case, the Court, per Modibo Ocran JSC, demonstrated a sophisticated approach to the relationship between international and domestic law. The Court applied provisions of the United Nations Convention on the Carriage of Goods by Sea (the Hamburg Rules), which Ghana had signed but not ratified, by invoking Article 18 of the VCLT.[22] The Court held that even in the absence of domestication, the treaty’s contents were “highly relevant” due to Ghana’s obligation not to defeat the object and purpose of a signed treaty.[23] This was a clear exercise of judicial activism aimed at harmonizing Ghana’s international conduct with its domestic jurisprudence, subtly bridging the gap of dualism. However, this progressive approach in Delmas proved short-lived. The Court subsequently retreated to a strict dualist position. In Republic v High Court (Commercial Division) Accra, Ex parte Attorney General (NML Capital),[24] the Court explicitly departed from the Delmas dictum, reasserting that a treaty only becomes part of Ghana’s municipal law upon incorporation by an Act of Parliament.[25] This established the current, inflexible state of the law, rendering the enforcement of undomesticated international instruments a significant challenge.
The Banful decision, therefore, was operating within this settled, strict dualist context. Yet, it represents the most rigid and consequential application of this principle. The trajectory is clear: from the innovative, internationally conscious harmonization in Delmas, to the formal reversion to dualism in NML Capital, and finally to the diplomatically disruptive enforcement of that dualism in Banful. The contradiction between the spirit of Delmas and the outcome of Banful underscores the latter decision’s failure to incorporate any of the former’s nuanced spirit. More critically, even while applying the NML Capital position, the Banful decision unfortunately missed a crucial opportunity to apply strict dualism in a manner that minimized international disruption, opting for outright invalidation over a curative remedy.
3.2. Ignoring the Spirit of Tuffuor and a Missed Path to a Nuanced Remedy
In a moment of profound jurisprudential irony, the majority in Banful cited the iconic words of Justice Sowah in Tuffuor v Attorney-General: “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 the soul of the nation.”[26] Yet, the Court’s reasoning demonstrates a clear failure to heed this very advice. A genuine purposive interpretation of Article 75 would seek to discern its underlying objective: to serve as a democratic check on the executive’s power to bind the nation to commitments that cede sovereignty, incur significant financial liabilities, or alter the rights of citizens.[27] It was not designed to micromanage core inherent executive powers related to foreign affairs, such as the reception of aliens, a power rooted in customary international law.[28] The majority’s formalistic reading, which focused solely on the form of the transaction as an “agreement” while ignoring its substantive nature, falls into the trap of what jurist H Kwasi Prempeh describes as “juridical overreach” that upsets the functional balance of powers.[29] Crucially, the Banful decision missed the opportunity to employ this purposive tradition to craft a proportionate remedy. Rather than the blunt instrument of outright invalidation, a court faithful to the spirit of Tuffuor could have declared the executive’s failure to seek parliamentary ratification unconstitutional, but suspended the effect of its declaration to allow for ex post facto ratification.[30] This would have cured the democratic deficit and upheld parliamentary sovereignty without forcing a breach of Ghana’s international commitment. By rejecting this harmonious alternative, the decision privileged a rigid textualism over the constitutional “soul” it pledged to uphold.
3.3. The Voice of Reason in Dissent: The Path Not Taken
The conceptual vulnerability of the majority’s decision in Banful is thrown into stark relief by the dissent of Justice William Atuguba, which embodies the path not taken.[31] He anchored his reasoning in a fundamental principle of statehood that predates the Constitution: “an independent sovereign state has the power inherent in sovereignty to decide what foreign nationals it will admit”.[32] He correctly identified the transaction as pertaining to the “reception, residence and expulsion of aliens”, an “indisputable power of sovereignty” exercised by the executive.[33]
Atuguba JSC’s dissent demonstrates the sophisticated understanding that the majority’s decision fell short of. He interpreted the Constitution not in a vacuum, but as a document operating within a system of international law and state practice. By sidelining this substantive analysis in favour of a procedural checklist, the majority committed a critical misstep of legal categorization. Therefore, it is Justice Atuguba’s opinion that stands as the true heir to the purposive legacy of Tuffuor and represents a missed opportunity for a decision that was both constitutionally progressive and diplomatically astute.
3.4. The Missed Remedy: Ex Post Facto Ratification as a Proportionate Cure
The conceptual inadequacy of the majority’s reasoning is further underscored by its rejection of a proportionate remedial mechanism capable of reconciling constitutional accountability with the imperatives of international comity: Ex Post Facto Ratification. This doctrinal instrument functions to rectify procedural irregularities in the domestic adoption of treaties without impairing the state’s pre-existing international obligations. Within this framework, ratification constitutes the formal endorsement by Parliament that confers domestic legal legitimacy upon an agreement.
The constitutional architecture governing treaty-making under Articles 75(1) and 75(2) of the 1992 Constitution of Ghana is sequential in design: the President’s power to execute treaties precedes Parliament’s power to ratify. This ordering implicitly anticipates the possibility of retrospective validation, thereby creating a constitutional space for ex post facto regularization. The core mischief that such ratification seeks to address is the categorical nullification of internationally binding commitments due solely to a domestic procedural lapse, a result at odds with the fundamental principle of pacta sunt servanda.[34]
Far from being extrinsic to Ghanaian constitutionalism, ex post facto ratification aligns with the framers’ structural intent. Were retrospective validation proscribed, the Constitution would have expressly conditioned the President’s treaty-making authority on prior parliamentary approval. The inverse sequencing of Article 75 strongly implies that subsequent parliamentary regularization was contemplated.[35]
Commonwealth jurisprudence reinforces this reasoning. In Fisher v Minister of Public Safety and Immigration (No 2), the Privy Council recognized that procedural defects in the executive’s domestic conduct could be remedied without invalidating the substantive act.[36] By dismissing this curative approach in favour of outright invalidation, the Supreme Court not only neglected a harmonizing principle but paradoxically empowered the executive to escape international obligations under the veneer of judicial sanction.
Such a precedent is legally and diplomatically perilous: it permits the state to invoke its own internal non-compliance as a shield against international accountability, undermining good faith obligations, destabilizing treaty relations, and shifting the burden of constitutional vigilance onto foreign treaty partners. In effect, the Banful decision privileges formalistic domestic procedure over the integrity of international law obligations, a jurisprudential outcome that is both disproportionate and unfortunate[37]
- ENGAGING THE COUNTERARGUMENTS: LEGITIMATE CONCERNS, DISPROPORTIONATE REMEDIES
A comprehensive critique of the Banful decision requires engaging with the legitimate policy concerns that underpinned it. While the plaintiffs’ and the Court’s anxieties regarding democratic accountability and national security were valid, this section argues that the chosen remedy of outright invalidation was a disproportionate response that ignored less disruptive alternatives consistent with both constitutional principles and international comity.
4.1. The “Note Verbale”: A Question of Classification and Substance
A threshold question is whether the “Note Verbale” constituted an “international agreement” under Article 75 requiring ratification. The Court classified it as such, focusing on the significant obligations it created for Ghana regarding the treatment and security of the detainees.[38] This classification is not without merit. The functional approach to defining a treaty, as supported by the VCLT[39] and scholars like McNair look to the substance of the commitments undertaken rather than their form.[40]
However, a more nuanced analysis reveals the complexity of this classification. Matters of security, immigration, and resettlement are often handled through non-binding arrangements or executive agreements based on inherent sovereign powers.[41] As noted by Lord McNair, “inter-governmental agreements may… be intended to have international legal effect but not to constitute treaties”.[42] The Court’s formalistic classification, without a deeper inquiry into the intent of the parties or established state practice in similar sensitive domains, privileged legal form over diplomatic function. Nevertheless, even accepting the Court’s classification arguendo, the central gap remains not the classification itself, but the disproportionate and diplomatically destructive remedy of voiding the agreement ab initio.
4.2. Accountability, Security, and the Disproportionality of the Remedy
The concerns regarding democratic accountability and national security that animated the plaintiffs are undeniably legitimate. The resettlement of individuals formerly deemed security threats demands transparency and parliamentary scrutiny.[43] The principle that significant international commitments should not be made by the executive alone is a cornerstone of democratic constitutionalism.[44]
However, the Court’s remedy was a legally blunt instrument. The principle of proportionality, a key element of rational adjudication, requires that a judicial remedy be tailored to achieve its legitimate aim with the least intrusive means necessary.[45] By rendering the agreement void ab initio, the Court chose the most disruptive option available. A more proportionate and constitutionally harmonious remedy would have been to declare the executive’s failure to seek prior approval a constitutional violation, but to suspend the effect of this declaration to allow for ex post facto parliamentary ratification.[46] This would have cured the accountability deficit, subjected the agreement to the very parliamentary scrutiny the Court rightly deemed essential, and ultimately allowed Ghana to honour its international word. The Court’s absolutist approach suggests that the ends of accountability justify any means, even those that sacrifice legal coherence, international law compliance, and diplomatic goodwill.
4.3. The Diplomatic Repercussions: Undermining Good Faith and Predictability
The decision’s implications extend beyond the immediate case, risking significant and lasting damage to Ghana’s standing as an international actor. By effectively requiring treaty partners to conduct due diligence on Ghana’s internal constitutional procedures, the decision undermined the fundamental principle of good faith (bona fides) that underpins all international relations.[47] The VCLT itself is premised on the idea that states act in good faith and that their executives possess the ostensible authority to bind the state.[48]
The Guantanamo precedent risks cultivating a perception of Ghana as an unpredictable and unreliable treaty partner. As noted by Shaw, the stability of international relations depends on the certainty that agreements will be honoured.[49] If other states perceive that agreements with Ghana can be easily invalidated by domestic courts based on internal procedural flaws that are not “manifest”, they may become hesitant to engage in sensitive or urgent diplomatic agreements. This could raise the transaction costs of international cooperation for Ghana, potentially isolating it in spheres where executive discretion and reliability are paramount. The path outlined in Justice Atuguba’s dissent, which would have affirmed the agreement’s validity while providing for robust retrospective parliamentary oversight, would have preserved Ghana’s credibility and reputation as a good-faith actor.
- CONCLUSION: A LEGACY OF MISSED OPPORTUNITIES AND UNTETHERED TRADITIONS
The Banful decision stands as a paradox, defined more by inadequacy than accomplishment. While motivated by a concern for parliamentary accountability, the decision produced a sovereign misstep that generated doctrinal uncertainty with lasting implications for Ghana’s constitutional order and international credibility.
At the heart of this shortcoming lies the decision’s non-consideration of the proportionate remedy of ex post facto ratification. Article 75 of the Constitution envisages a sequential relationship between the President’s treaty-making authority and Parliament’s ratification power, implicitly permitting retrospective validation. By disregarding this harmonizing mechanism in favour of outright invalidation, the decision overlooked a doctrinally sound solution and inadvertently authorized the Executive to repudiate international obligations with judicial endorsement, undermining pacta sunt servanda and shifting constitutional burdens onto treaty partners.
Although concerns about accountability and national security were legitimate, the remedy was disproportionate. Principles of proportionality require judicial remedies to achieve their aims through the least intrusive means. Simply declaring the agreement void ab initio was manifestly inadequate. A more appropriate course would have been to declare the Executive’s failure unconstitutional, while suspending the declaration to enable retrospective ratification, thus achieving oversight without compromising Ghana’s treaty commitments.
Internationally, the decision eroded the principle of good faith that underpins the VCLT. By invalidating the agreement on a procedural technicality, the decision risked portraying Ghana as an unreliable treaty partner and raising the transaction costs of international cooperation. Justice Atuguba’s dissent, validating the agreement subject to retrospective oversight, better preserved Ghana’s credibility as a good-faith actor.
Domestically, the decision turned away from purposive constitutionalism. Rather than construing Article 75 as a safeguard against unaccountable sovereignty-ceding commitments, it applied it as a rigid textual limit on executive discretion. This formalism sacrificed proportionate accountability, constrained foreign affairs powers, and diluted Ghana’s constitutional tradition.
In sum, the Banful decision reflects judicial insularity at a diplomatic cost. By preferring absolute invalidation to proportionate validation, such as ex post facto ratification, the decision undermined both constitutional coherence and international trust. The Banful decision thus leaves a legacy of disproportionate remedy and an avoidable legal and diplomatic burden on Ghana’s treaty partners.
* Judge, Circuit Court 7, Accra, Ghana; LL.M. (Distinction) International Criminal Law and Justice (ICL&J) International Criminal Court (ICC) Elective, Ghana Institute of Management and Public Administration (GIMPA) (2025); Valedictorian, 2025 Masters Cohort (GIMPA); Participant, ICC Summer School, Utrecht University (2025); Barrister-at-Law (BL), Ghana School of Law (2012); Best Student, Law of Evidence (2012 Call to the Bar); LLB, Kwame Nkrumah University of Science and Technology (KNUST); Achimota School (2002).
The views expressed are personal and do not reflect the position of any institution.
[1] Banful & Another v Attorney-General & Another [2017] GHASC 10 (Supreme Court, Ghana).
[2] Ibid.
[3] Ibid.
[4] Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT).
[5] Banful (n 1).
[6] The Court cited Tuffuor v Attorney-General [1980] GLR 637 but applied a rigid textualism inconsistent with that case’s purposive spirit.
[7] Delmas America Africa Line Inc v Kisko Products Ghana Ltd [2005-2006] SCGLR 95.
[8] Republic v High Court (Commercial Division) Accra, Ex parte Attorney General and NML Capital Ltd [2013] Civil Motion No J5/10/2013 (Supreme Court, Ghana).
[9] Banful (n 1) (Atuguba JSC dissenting).
[10] VCLT (n 4). Ghana ratified the VCLT on 29 August 1969.
[11] VCLT (n 4) art 27.
[12] Banful (n 1) 34-35.
[13] See generally James Crawford, Brownlie’s Principles of Public International Law (9th edn, OUP 2019) 90-93.
[14] Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press 1994) 82.
[15] VCLT (n 4) art 46.
[16] VCLT (n 4) art 46(2).
[17] Banful (n 1) 38.
[18] Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) [2002] ICJ Rep 303, [265].
[19] Banful (n 1) 39.
[20] Constitution of the Republic of Ghana 1992, art 75(1).
[21] Delmas (n 7).
[22] Ibid 96.
[23] Ibid
[24] NML Capital (n 8).
[25] Ibid [27].
[26] Tuffuor v Attorney-General [1980] GLR 637, 647.
[27] See AKP Kludze, The Ghana Law of Torts (2nd edn, Sweet & Maxwell 2000) 12.
[28] Ian Brownlie, Principles of Public International Law (9th edn, OUP 2019) 477.
[29] H Kwasi Prempeh, ‘Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa’ (2006) 80 Tulane L Rev 1239, 1265.
[30] This concept is well-established in Commonwealth constitutional practice: see Fisher v Minister of Public Safety and Immigration (No 2) [1999] 2 WLR 349 (PC).
[31] Banful (n 1) 12-25 (Atuguba JSC dissenting).
[32] Ibid 18.
[33] Ibid 19.
[34] Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 Jan 1980) 1155 UNTS 331, art 26 (‘pacta sunt servanda’).
[35] Constitution of the Republic of Ghana 1992, arts 75(1)–(2).
[36] Fisher v Minister of Public Safety and Immigration (No 2) [1997] UKPC 81, [1998] 1 AC 673.
[37] Ibid.
[38] Banful (n 1) 30-32.
[39] VCLT (n 4) art 2(1)(a).
[40] Lord McNair, The Law of Treaties (Clarendon Press 1961) 4-6.
[41] Michael J Glennon, Constitutional Diplomacy (Princeton University Press 1990) 78-81.
[42] McNair (n 36) 6.
[43] This reflects concerns in Tuffuor (n 26) about concentration of power.
[44] Prempeh (n 29) 1255.
[45] See David Beatty, The Ultimate Rule of Law (OUP 2004) 162-65.
[46] Fisher (n 30).
[47] Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (CUP 1987) 105-60.
[48] VCLT (n 4) preamble and art 26.
[49] Malcolm N Shaw, International Law (8th edn, CUP 2017) 93.
