Declaration of nullity to the extent of the inconsistency
In light of the foregoing, we have no hesitation in holding that Section 1(4) of Act 550 is unconstitutional to the extent of its inconsistency hereinbefore set out. By purporting to allow what the Constitution forbids (asset declaration after assumption of office rather than before), Section 1(4) contravenes Article 286(1)(a). Pursuant to Article 1(2) of the 1992 Constitution and consistent with the duty of this court in cases such as NEW PATRIOTIC PARTY VS. ATTORNEY-GENERAL [1993-94] 2 GLR 35; ADJEI AMPOFO VS. ATORNEY-GENERAL AND THE PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS [2011] 2 SCGLR 1104, we declare the impugned provision in Section 1(4) of Act 550 null and void to the extent of its inconsistency with the provision of Article 286 1(a) of the 1992 Constitution. It is accordingly struck down.
It is well-settled that any legislation made in excess of the powers conferred on the legislature by the Constitution, 1992, which is inconsistent with any provision of the Constitution, would be declared a nullity by the Supreme Court in the exercise of its power of judicial review under Article 130(1)(b) of the Constitution. As already hinted, it is an accepted principle that the rule of law constitutes the core of our Constitution, and it is the essence of the rule of law that the exercise of parliament’s power to make laws should be within constitutional limitations.
It is important to point out that when a party has challenged the constitutionality of an enactment for being inconsistent with provisions of the Constitution, the party must make out a clear case of inconsistency of every part of the impugned enactment as an enactment usually comprises parts each of which is capable of independent legal validity and therefore severable. There is a presumption of law that enactments made by the legislature are valid unless proven otherwise so where provisions of an enactment are severable, it is only the parts that are clearly inconsistent with the Constitution that may be struck down leaving the other parts that do not contravene the Constitution to stand. For that reason, article 1(2) of the Constitution limits the invalidation of an impugned enactment only “to the extent of the inconsistency”.
It is to be remembered that in testing any law for unconstitutionality, the court should not concern itself with the propriety or expediency of that impugned law but with what it provides. See New Patriotic Party v. Attorney-General (CIBA CASE) [1996-97] SCGLR 729.
